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CONTRACTS — SUITS BY THIRD PERSONS NOT PARTIES TO THE CONTRACT SOLE BENEFICIARY: EFFECT OF RESCISSION BY CONTRACTING PARTIES. The defendant, as part consideration for land deeded to him by his father, promised him to pay the plaintiff, the defendant's niece, a sum of money when she reached the age of eighteen. Before the plaintiff had any notice of the contract, it was rescinded by the contracting parties. She now sues for the money. Held, that she can recover. Wetutzke v. Wetutzke, 148 N. W. 1088 (Wis.).

This decision is entirely in accord with principle. A contract for the sole benefit of a third party should vest an irrevocable right in him immediately. His consent, as in the case of a gift of property, should be presumed from the beneficial nature of the transaction. If, however, the contract is one to discharge a debt owed by the promisee, the creditor should have no right to object to rescission by the parties unless, the debtor being insolvent, this amounts to a fraudulent disposition of a valuable asset. See WILLISTON'S Wald's POLLOCK, CONTRACTS, pp. 273, 274. A few jurisdictions recognize this distinction. Thompson v. Gordon, 3 Strobh. (S. C.) 196; Youngs v. Trustees, 31 N. J. Eq. 290; Willard v. Worsham, 76 Va. 392. But the majority of cases say in general terms that the contracting parties may rescind a contract for the benefit of a third person at any time before the latter consents. Gilbert v. Sanderson, 56 Ia. 349, 9 N. W. 293; Trimble v. Strother, 25 Oh. St. 378; Spaulding v. Henshaw, 80 Ky. 55; Blake v. Atlantic National Bank, 33 R. I. 464, 82 Atl. 225; Carnahan v. Tousey, 93 Ind. 561. In at least one of these jurisdictions, however, the result of the principal case might be reached on the ground that the consent of an infant sole beneficiary would be presumed. See Richards v. Reeves, 149 Ind. 437, 49 N. E. 348. The jurisdiction of the principal case, on the other hand, appears to forbid rescission in all cases. See Zwietusch v. Becker, 153 Wis. 213, 140 N. W. 1056. Codes or statutes in several states provide that contracts for the benefit of a third party may be sued on by the third party at any time before the contracting parties rescind. Civ. CODE CAL., § 1559; Rev. L. OKLA. 1910, $ 895; Civ. CODE So. Dak., 1193. Foreign codes, also, generally require notice of assent by the third party to prevent revocation. See 16 Harv. L. REV. 43.f.

CRIMINAL LAW ATTEMPT . ACCEPTANCE OF BRIBE BY PUBLIC OFFICIAL FOR PURPOSES OF DETECTION. The defendant offered the state's attorney a bribe if he would drop certain criminal proceedings. The state's attorney, in order to trap the defendant, accepted the money. The Illinois Criminal Code, HURD's Rev. STAT. 1913, c. 38, § 31, provides that whoever corruptly gives money to a state's attorney with intent to influence him in his official capacity is guilty of bribery, and punishable by imprisonment. Section 32 imposes a fine for an "offer or attempt to bribe” a state's attorney. Held, that the defendant is not guilty of bribery, and can be convicted only for an attempt. People v. Peters, 106 N. E. 513 (Ill.).

At common law the distinction between bribery and an attempt to bribe was largely academic; both were misdemeanors, and equally punishable. Walsh v. People, 65 Ill. 58; 2 BISHOP, CRIMINAL LAW, 8 ed., § 88. Hence the subject is much confused in the books. A corrupt-offer of money, though rejected, was sometimes treated as the substantive offense. See i HAWK. P. C., 6 ed., 32; COKE, 3 INST., 147, $ 3; MAY, CRIMINAL LAW, 2 ed., § 140. Lord Mansfield, however, considered it a mere attempt. See Rex v. Vaughan, 4 Burr. 2494, 2500. And it is classed as such in the Illinois statute. But a delivery of money on corrupt terms, to one who professes to accept the terms, would seem to constitute the complete crime. Henslow v. Fawcett, 3 A. & E. 51. But see Newman v. People, 23 Col. 300, 305, 47 Pac. 278, 280. The bribe-giver's wrongful act consists in corruptly exerting pressure on a public official, and this is accomplished when the bribe money is delivered, if not before. See Sulston v. Norton, 3 Burr. 1235, 1237. The court's contention that, as the state's attorney was not bribed, the defendant could not have bribed him, is a play on words. Bribe-giving and bribe-taking are separate and independent crimes, though called by the same name. See State v. Dudoussat, 47 La. Ann. 977, 997, 17 So. 685, 687. That the state's attorney participated in the crime for purposes of detection is of course no defense. People v. Mills, 178 N. Y. 274, 70 N. E. 736; Minter v. State, 159 S. W. 286 (Tex.). Had he instigated the crime, some jurisdictions would have excused the wrongdoer. O'Brien v. State, 6 Tex. App. 665. Contra, Grimm v. United States, 156 U. S. 604. See 18 Harv. L. REV. 65. But mere participation is a defense only where it negatives an essential element of the crime. Rex v. Martin, R. & R. 196.

CRIMINAL LAW SENTENCE - EFFECT OF COMMUTATION. - A convict had served over twenty years of a life term when the state board of pardons commuted the sentence to imprisonment for thirty years. Had this been the sentence at the outset, the convict would already have been entitled to release by reason of good behaviour. Held, that the convict must be discharged. State ex rel. Murphy v. Wolfer, 148 N. W. 896 (Minn.).

The court proceeded upon the theory that commutation substitutes one sentence for another. See Lee v. Murphy, 22 Gratt. (Va.) 789, 799; Johnson v. State, 63 So. 163 (Ala.). Accordingly, it reasoned that after commutation the status of the prisoner was necessarily the same as though the original term had been but thirty years, and so held him entitled to deductions for prior good behavior, under the statute granting this allowance to all but life convicts. MINN. GEN. STAT., 1913, § 9309. With due respect, however, it is submitted that no rigid legal rule requires that commutation invariably operate as if the lesser sentence had been first imposed. On the contrary, the intent of the pardoning power should be controlling. Thus it has been held that commutation to "nine years actual time” precluded any deduction for good behavior. See In re Hall, 34 Neb. 206, 51 N. W. 750. Moreover, the circumstance that if prior good time were allowed, the prisoner could claim his discharge twenty-three days after commutation, has been taken to indicate that previous good behavior was not to be considered. In re McMahon, 125 N. C. 38, 34 S. E. 193. This authority the principal case seeks to distinguish on the purely formal ground that the Minnesota statute states expressly that “good time” should begin on arrival in prison. But it would seem that in the present case there was all the more reason for excluding allowances for prior good behavior from the “thirty years” when the opposite construction made discharge in fact overdue at the time of commutation. A result like that of the principal case should be attained where, and only where, the commuting authority intends a complete substitution of the new sentence with its concomitant legal consequences.

DEAD BODIES NEGLIGENT MUTILATION Right OF RECOVERY FOR MENTAL ANGUISH BY RELATIVE OTHER THAN NEXT OF KIN. — The mother of a boy killed on the defendant railroad sued the company for mental anguish caused by the negligent mutilation of the dead body. The father, who was living, was by statute the next of kin. Held, that the mother cannot recover. Floyd v. Atlantic Coast Line Ry. Co., 83 S. E. 12 (N. C.).

In England the law recognizes no property right in a corpse. Williams v. Williams, 20 Ch. D. 659. In this country a dead body is not property in the absolute sense of the word. But the great weight of authority holds that a legal quasi-property." right to the possession of the dead body for the purpose of burial vests first in the surviving wife or husband, and then in the next of kin. Any wilful or wanton mutilation of the body will be a violation of this right, and will furnish ground for recovery for consequent mental anguish. Larson v. Chase, 47 Minn. 307, 50 N. W. 238; Kyles v. Southern Ry. Co., 147 N. C. 394, 61 S. E. 278. But see Long v. Chicago, R. I. & P. Ry. Co., 15 Okla. 512, 86 Pac. 289. There is also authority for such recovery where the injury is merely negligent. Hale v. Bonner, 82 Tex. 33, 17 S. W. 605. Cf. Birmingham T. & T. Co. v. Still, 61 So. 611 (Ala.). Contra, Hall v. Jackson, 24 Colo. App. 225, 134 Pac. 151. The limited character of the right, however, is shown by the fact that it may be defeated by the deceased's contract. Painter v. U.S. Fidelity & Guaranty Co., 91 Atl. 158 (Md.). Even in the absence of such a limitation, however, the principal case properly denies recovery, for the legal right is vested in the next of kin, and he alone may sue for the mental anguish caused by any mutilation.


RIGHT TO WATER PUMPED BY GASOLINE ENGINE ON ADJOINING LAND. - The defendant owned a tract of land, one part of which was supplied with water from a well on another part, which was pumped by a gasoline engine there situated. The quasi-dominant tenement was first leased to the plaintiff, and then sold to a third party, who later conveyed to the plaintiff. Neither deed mentioned the water rights, but the pipes were visible and the use of the system necessary to the full enjoyment of the land. The defendant then cut off the water, shut up the pump-house and blocked up the way thereto. The plaintiff now seeks to enjoin him from further interference with her rights. Held, that she is entitled to the relief sought. Adams v. Gordon, 106 N. E. 517 (Ill.).

In order to imply the grant of an easement, it must be apparent, continuous, and reasonably necessary to the enjoyment of the premises conveyed. Spencer v. Kilmer, 151 N. Y. 390, 45 N. E. 865. The word “continuous," has been the subject of much dispute. Some have thought that it required the easement to be capable of enjoyment without the intervention of man, as, for example, a drain or light and air. See GALE, EASEMENTS, 3 ed., p. 83. On this theory, the implied grant of a right of way has been held impossible. Bonelli Bros. v. Blakemore, 66 Miss. 136. But the view now generally adopted is that the easement is continuous if the tenements are permanently adapted to its enjoyment. Larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094; Baker v. Rice, 56 Oh. St. 463, 47 N. E. 653. See GALE, EASEMENTS, 8 ed., p. 137. Under this view the grant of an easement to water pumped by an hydraulic ram has been implied. Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182. The doctrine of implied easements, however, should be confined to narrow limits, for it does not depend on any intention of the parties, and is also hostile to the policy of the registry system. See 1 TIFFANY, REAL PROPERTY, P. 710. The principal case extends the rule farther than any previous decision, and is therefore to be regretted. But see Foote v. Yarlott, 238 Ill. 54, 87 N. E. 62; Eliason v. Grove, 85 Md. 215.

EMINENT DOMAIN COMPENSATION VALIDITY OF STATUTE EXTINGUISHING RIGHT TO COMPENSATION WITHOUT NOTICE. — A statute provided that all private owners of easements in any street which a city intended to close must present their claims for compensation within six years after the filing of the map by the city. The city filed such a map in 1895 to close two streets, in which private owners had easements. In 1898 the streets were closed. In 1906 the city condemned the fee in the streets for another purpose, and the owners' right to substantial compensation depended on the question whether the easements had been extinguished. Held, that the easements still exist, on the ground that the statute is unconstitutional. In the Matter of the City of New York, 212 N. Y. 538.

An abutter's private easement in a street cannot be extinguished without compensation. Schneider v. City of Detroit, 72 Mich. 240, 40 N. W.;

· 329. Any statute authorizing the taking of such a protected property right must therefore provide reasonable means for compensation, prior or subsequent. State v. City of Perth Amboy, 52 N. J. L. 132, 18 Atl. 670; Tuttle v. Justices of Knox County, 89 Tenn. 157, 14 S. W. 486. See Cooley, CONSTITUTIONAL LIMITATIONS, 7 ed., p. 813. It is also essential, except in three or four jurisdictions, that some sort of notice be given to the property owner before or after condemnation. See 2 LEWIS, EMINENT DOMAIN, 3 ed., § 564. Even where a statute does not specifically provide for notice, its constitutionality is usually upheld by implying a requirement for notice. See Peoria & Á. I. Ry. Co. v. Warner, 61 Ill. 52. It seems better, however, to avoid such judicial legislation and hold void a statute which makes no provision for reasonable notice. Savannah, F. & W. Ry. Co. v. Mayor, 96 Ga. 680, 23 S. E. 847; Board of Education v. Aldredge, 13 Okla. 205, 73 Pac. 1104. In the principal case, the filing of a map to close the street was the only notice prescribed by the statute. The filing of a notice of appropriation in the registry of deeds has been held sufficient constructive notice in another jurisdiction to bar all right to compensation after three years. Appleton v. City of Newton, 178 Mass. 276, 56 N. E. 648. But (unless it can be said that the abandonment of the street by the city would itself carry the necessary notice) the doctrine of the principal case seems preferable, and the decision must be supported. It is settled, however, that if the landowner is protected by adequate notice, the mere fact that the statute throws upon the landowner the duty to seek compensation within a fixed time will not render it unconstitutional. Banse v. Town of Clark, 69 Minn. 53, 71 N. W. 819; Barker v. Southern Ry, Co., 137 N. C. 214, 49 S. E. 115.



EVIDENCE CHARACTER PARTIES — CRIMINAL PROSECUTION ADULTERY: CHARACTER OF THE ALLEGED PARTICIPANT. - At the trial of an indictment for adultery, the defendant offered evidence of the good character of the woman with whom he was charged to have committed the offense. The evidence was excluded. Held, that the evidence should have been admitted. Glover v. State, 82 S. E. 602 (Ga. App.).

According to the general rule applicable in civil cases, the character of the defendant is not admissible on the issue of his adultery in an action for divorce. Humphrey v. Humphrey, 7 Conn. 116. But see 13 Harv. L. Rev. 607. The defendant's character is equally inadmissible in criminal prosecutions for adultery, unless he takes advantage of the established exception allowing the criminal defendant to offer evidence of his own good character. State v. Snyder, 86 Vt. 449, 85 Atl. 984. But when the character of a third party is offered, the character rule applies with much diminished force, and the tendency is to treat the evidence like other collateral matter. See 1 WIGMORE, EVIDENCE, $ 68. When adultery is in issue, therefore, since the proof must necessarily be largely circumstantial, and the character of the participant is usually quite relevant, the considerations favoring admissibility generally prevail. Thus, in a criminal action like that in the principal case, the good character of the alleged participant may be shown by the defendant to refute the charge. Commonwealth v. Gray, 129 Mass. 474. On the same principle, the prosecution may show the bad character of the participant. _State v. Eggleston, 45 Ore. 346, 77 Pac. 738; Sutton v. State, 124 Ga. 815, 53 S. E. 381; State v. Nieburg, 86 Vt. 392, 85 Atl. 769. Contra, Guinn v. State, 65 S. W. 376 (Tex. Crim. App.). Similar rules govern evidence of this kind in civil suits for divorce on the ground of adultery. Marble v. Marble, 36 Mich. 386; Clement v. Kimball, 98

Mass. 535.

EVIDENCE — DECLARATIONS CONCERNING MENTAL STATE - DECLARATIONS OF PRESENT INTENTION AS PROOF OF EXISTING FACT. — In a suit by one alleged to be an illegitimate posthumous child of a deceased workman to recover compensation for the death of the alleged father as a dependent under the English Workmen's Compensation Act, declarations by the deceased to the mother and to others, admitting that he was the father of the child and declaring his intention to marry the mother, were offered in evidence to prove paternity and dependency. Held, that the declarations are admissible. Lloyd v. Powell Duffryn Steam Coal Co., Ltd., (1914) A. C. 733.

For a discussion of the results to which this decision seems to lead, see this issue of the REVIEW, P. 299.

EXECUTORS AND ADMINISTRATORS RIGHTS, POWERS AND DUTIES RIGHT OF RETAINER: PRESENT SCOPE OF THE DOCTRINE. - A and B, joint trustees, lost part of the trust funds by an improper investment. A died, appointing B and C his executors. C took A's place as joint trustee, and now claims the right to retain from A's estate the sum due the trust. Held, that he may retain. In re Harris, (1914) 2 Ch. 395.

A became bound to pay a certain sum to trustees, in trust for herself for life, and then for B, her daughter. She died thirty years after the obligation arose, without having paid the debt, and appointed B her executrix. B now claims the right to retain the sum due from A's estate. Held, that she may not retain for a debt due her as cestui que trust. In re Sutherland, 49 L. J. 490 (Chan. Div.).

In England an executor may retain from the estate the amount of a debt due to him. This right arose from the common-law rule allowing preferences to creditors of the estate and the consequent injustice if the executor were placed in a worse position than other creditors, through his inability to sue himself. Woodward v. Lord Darcy, Plowd. 184; Crowder v. Stewart, 16 Ch. D. 368. When the debt is due to another in trust for the executor, the trustee can bring suit and with the abolition of the executor's common-law right to prefer creditors, the necessity for retainer ceases. The second principal case seems correct. See, therefore, Cockcroft v. Black, 2 P. Wms. 298. Cf. Thompson v. Thompson, 9 Price, 469. It does not seem material that the claim arose after the testator's death. In re Barrett, 43 Ch. D. 70. In England, moreover, the executor may retain even if the claim was barred by the Statute of Limitations in the lifetime of the testator. Stahlschmidt v. Lett, í Sm. & G. 415. In America, the right of retainer exists in a few states, but has been generally abolished, or limited to solvent estates. See Nelson v. Russell's Adm’rs, 15 Mo. 356; Miller v. Irby, 63 Ala. 477. In states where the right still exists, the English rules are generally followed, except that, by the weight of American authority, an executor may not retain for a debt barred by the Statute of Limitations. Hoch's Appeal, 21 Pa. 280; Rogers v. Rogers, 3 Wend. (N. Y.) 505. If a legatee may plead the statute against a creditor when the executor does not, he should have the same right against the executor himself, and this feature of the American doctrine therefore seems preferable. See 22 Harv. L. REV. 452.

GIFTS — GIFTS Mortis Causa – GIFT OF Donor's Own CHECK. The testator drew a check for an amount greater than the amount of his deposit, and delivered it to the plaintiff as a gift mortis causa. The plaintiff now sues the executor, who had withdrawn the funds from the bank. Held, that the plaintiff may recover the amount of the deposit. Aubrey v. O'Byrne, 49 Nat. Corp. Rep. 302 (Ill. App. Ct., Oct. 8, 1914).

The negotiable instrument of a third party may be the subject of a valid gift mortis causa. Clement v. Cheesman, 27 Ch. D. 631; Brown v. Brown, 18 Conn. 410. Delivery of the instrument would carry with it an irrevocable power of attorney to enforce the obligation in the name of the donor. Snell

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