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consequent restraint on alienation has not usually been deemed to be against public policy. See Bargate v. Shortridge, 5 H. L. Cas. 297, 311; Borland's Trustee v. Steel Brothers & Co., Ltd., (1901) 1 Ch. 279; GRAY, RESTRAINTS, 2 ed., § 29 d. Any such restriction, however, must acquire its force either from incorporation in the agreement of association as one of the original incidents of the share or else by means of a by-law in some way binding upon the holders. It is generally said that a mere by-law is not sufficient to create the restriction on the right to transfer the stock. Kinnan v. Sullivan County Club, 26 N. Y. App. Div. 213, 50 N. Y. Supp. 95; Sargent v. Franklin Insurance Co., 8 Pick. (Mass.) 90. Cf. Brinkerhoff-Farris Trust Ex Savings Co. v. Home Lumber Co., 118 Mo. 447, 24 S. W. 129. But even a by-law will efiectively impose the restriction if the stock recites the limitation, or is clearly taken on those terms. New England Trust Co. v. Abbott, 162 Mass. 148, 38 N. E. 432; Barrett v. King, 181 Mass. 476, 63 N. E. 934. Cf. Nicholson v. Brewing Co., 82 Oh. St. 94, 91 N. E. 991. See Uniform Stock Transfer Act, § 15. On the other hand, by express agreement among themselves the stockholders themselves may restrict the transfer of shares almost without limitation. See Fitzsimmons v. Lindsay, 205 Pa. 79, 82, 54 Atl. 488, 489; Williams v. Montgomery, 148 N. Y. 519, 43 N. E. 57; 20 Harv. L. REV. 328. Similarly, where the restrictions are found in the agreement of association and referred to on the certificates, they are treated as inherent in the share itself and consequently bind all holders. Gibbs v. Long Island Bank, 83 Hun (N. Y.) 92, 31 N. Y. Supp. 406. In the principal case the statute itself showed there was no policy against restrictions, and there was no valid objection, therefore, to limitations expressed in the agreement and repeated in the certificates, and found by the court to be entirely reasonable in view of the nature and purposes of the association.

DAMAGES MEASURE OF DAMAGES: TORT — SEVERANCE FROM REALTY: WILFUL AND INNOCENT TRESPASS. The defendants carried off a quantity of ore from the plaintiff's mine, milled it, and sold the finished product. Part of the ore was taken with knowledge of the plaintiff's rights. In an action of trespass, the court instructed the jury that the measure of damages for innocent trespass was the gross proceeds of the sale less all the defendant's expenses; but that when the trespass was wilful, the defendant was entitled to no deductions. Held, that these instructions are correct. Liberty Bell Gold Mining Co. v. Moorhead Mining & Milling Co., 145 Pac. 686 (Colo.).

By the weight of authority, the measure of damages for an innocent trespass is, as stated in the principal case, the value of the ore in the ground, plus any profits of the transaction. Forsyth v. Wells, 41 Pa. 291; Burke Hollow Coal Co. V. Lawson, 151 Ky. 305, 151 S. W.657. See Winchester v. Lang, 33 Mich. 205; Dougherty v. Chestnut, 86 Tenn. 1. This rule adequately compensates the plaintiff for the injury suffered, and inflicts no penalty on the defendant. A harsher rule, allowing the plaintiff to recover the value of the ore after severance, is in force in some jurisdictions. Donovan v. Consolidated Coal Co., 187 Ill. 28, 58 N. E. 290; Barton Coal Co. v. Cox, 39 Md. 1. A few states apply this larger measure of damages only when the action is in trover. Ivy Coal & Coke Co. v. Alabama Coal & Coke Co., 135 Ala. 579, 33 So. 547. Cf. Warrior Coal & Coke Co. v. Mabel Mining Co., 112 Ala. 624, 20 So. 918. This distinction is objectionable as giving two measures of damages for the same injury. It does not exist, of course, where forms of action have been abolished. See SEDGWICK, DAMAGES, 9 ed., $ 500 et seq. Where the trespass is wilful, the plaintiff, by the great weight of authority, can recover the full value of the converted article at the time of demand. St. Clair v. Cash Gold Mining & Milling Co., 9 Colo. App. 235, 47 Pac. 466; Liberty Bell Co. v. Smuggler Co., 203 Fed. 795. Cf. Single v. Schneider, 30 Wis. 570; McGuire v. Boyd Coal & Coke Co., 286 Ill. 69,

86 N. E. 174. If the defendant's right to recover his expenses depended upon a quasi-contractual counterclaim, this result would be correct, for the wrongdoer has no claim in quasi-contract. See 22 Harv. L. REV. 419, 425. The courts, however, have not treated the question in this way, but give the plaintiff compensation beyond his injury on the theory of exemplary damages. From this point of view the result seems unjustifiable, as the plaintiff has suffered no more injury than if the trespass had been innocent, and deserves no greater compensation.

EMINENT DOMAIN WHAT PROPERTY CAN BE TAKEN LAND ALREADY DEVOTED TO THE SAME PUBLIC USE. — An electric railway company acquired a site for a power plant and was proceeding with due diligence to develop it for use. Another railway company seeks to take the land for the same purpose by eminent domain under a general statute. Held, that it cannot do so. State v. Superior Court for Spokane County, 145 Pac. 999 (Wash.).

This decision is undoubtedly correct. It is true that property already held for a public use is still subject to the state's power of eminent domain. Central Bridge Corp. v. Lowell, 4 Gray (Mass.) 474. And property may be taken from private into public ownership to be used for the same public purpose. In the Matter of the City of Brooklyn, 143 N. Y. 596, 38 N. E. 983; Brady v. Atlantic City, 53 N. J. Eq. 440, 32 Atl. 271. But it is not within the power of the legislature to authorize a private individual or corporation to take property already devoted to public use to be used for the same purpose and in the same manner, for this would merely effect an arbitrary transfer of the property of one person to another without the justification of public necessity or benefit which is the basis of the right of eminent domain. Cary Library v. Bliss, 151 Mass. 364, 25 N. E. 92; and see Lake Shore & M. S. Ry. Co. v. Chicago & W. I. R. Co., 97 III. 506, 512; West River Bridge Co. v. Dix, 6 How. (U. S.) 507, 537; 2 LEWIS, EMINENT DOMAIN, 3 ed., $ 440. The result of this case could also be reached by statutory construction, for unless greater power is given expressly or by necessary implication, general eminent domain statutes give the right to take land already in public use, only upon the condition that the loss of the part taken will not seriously impede this existing use and that the condemnor can show a reasonable necessity for it. In the Matter of the City of Buffalo, 68 N. Y. 167; Rutland-Canadian R. Co. v. Central Vermont Ry. Co., 72 Vt. 128, 47 Atl. 399; Butte A. & P. Ry. Co. v. Montana U. Ry. Co., 16 Mont. 504, 41 Pac. 232; see 18 Harv. L. Rev. 313. But see Marin County Water Co. v. Marin County, 145 Cal. 586, 79 Pac. 282.

EVIDENCE CHARACTER OF PARTIES ADMISSIBILITY IN CIVIL SUITS INVOLVING MORAL TURPITUDE. - In an action upon a fire insurance policy, the defendant sought to defeat recovery upon the ground that the insured, who died before trial, had fraudulently overstated his loss. On this issue evidence of the good reputation of the insured for truth and honesty was given. Held, that such evidence is admissible. Rasmusson v. North Coast Fire Ins. Co., 145 Pac. 610 (Wash.).

Attempts have been made at various times to engraft exceptions upon the general rule excluding evidence of the character of the parties in civil suits where it is not itself in issue. In negligence cases the reputation of the negligent person has been admitted where there were no eyewitnesses. Chicago, R. I. & P. Ry. Co. v. Clark, 108 III. 113. But see 12 Harv. L. Rev. 500, 568. Another exception was attempted in an early New York case, where the act involved moral turpitude and was based solely upon circumstantial evidence. Ruan v. Perry, 3 Cai. (N. Y.) 120. But this case was promptly overruled and is generally repudiated to-day. Gough v. St. John, 16 Wend. (N. Y.) 646. See i WIGMORE, EVIDENCE, § 64. Upon analogy to the ordinary rule in criminal cases allowing

the accused to show his own good character, another exception has been introduced in actions for slander imputing a crime, where truth has been pleaded. Harding v. Brooks, 5 Pick. (Mass.) 244; Downey v. Dillon, 52 Ind. 442. Contra, Matthews v. Huntley, 9 N. H. 146; Houghtaling v. Kelderhouse, 2 Barb. (N. Y.) 149 (affirmed 1 N. Y. 530). A somewhat similar exception has been advocated wherever, as in the principal case, the act in issue is itself also a crime. Hein v. Holdridge, 78 Minn. 468, 81 N. W. 522. Contra, Continental Ins. Co. v. Jacknichen, 110 Ind. 59, 10 N. E. 636; Adams v. Elseffer, 132 Mich. 100, 92 N. W. 772. In following the analogy of the criminal cases, these two last exceptions overlook the historical fact that the rule in criminal cases is an exception made in favor of the criminal in an attempt to mitigate the severity of the old English criminal law. See Matthews v. Huntley, supra, 148. This consideration has no place in a civil suit. On the other hand, the dangers of complicating the issue, prolonging the trial and prejudicing the jury weigh heavily against extending the exceptions to the character rule.


OPINION EVIDENCE — EXPERT TESTIMONY: CALCULATION OF PROBABILITY. - The defendant was indicted for having offered in evidence a typewritten document with knowledge of its fraudulent alteration. It was shown that certain peculiarities of the form and alignment of the letters of the alteration corresponded exactly with peculiarities in specimens of writing from the defendant's typewriter. The defendant brought out from testimony given by typewriter experts the many causes and great frequency of occurrence of such peculiarities. In answer to a hypothetical question propounded by the prosecution assuming a certain frequency to the appearance of each defect, an assumption apparently unwarranted by any evidence, an expert mathematician then calculated for the jury the chances of the coincidence of these defects in another machine as being one in four billion. Held, that the admission of this mathematician's testimony was reversible error. People v. Risley, 214 N. Y. 75, 108 N. E. 200.

For a discussion of mathematically determined probability and its use in evidence, see Notes, p. 693.

EVIDENCE OPINION EVIDENCE HANDWRITING: TESTING LAY WITNESSES BY EXTRANEOUS TRUE AND FORGED SIGNATURES. - Witnesses who were acquainted with the defendant's handwriting from having seen him write or having seen his admitted signatures in the course of business, affirmed the authenticity of a disputed signature. On the cross-examination they were asked to pass upon the authenticity of other signatures, both true and forged. The merit of their answers was displayed by proving the authorship of these signatures in a manner which would have made authentic signatures admissible for the purpose of juxtaposition on the direct examination. Held, that such a iest is not permissible. Fourth National Bank of Fayetteville v. McArthur, 84 S. E. 39 (N. C.).

The interesting problem of impeaching lay witnesses as to handwriting, which the case raises, is discussed in this issue of the REVIEW, p. 699.

EVIDENCE – OPINION EVIDENCE — SELF-DEFENSE: BYSTANDER'S OPINION OF DEFENDANT's DANGER FROM DECEASED. At a homicide trial the defendant pleaded self-defense and testified to her belief that the deceased was about to shoot. A witness, after describing the actions of the deceased, was then asked what he thought the deceased was doing with his right hand, and would have answered that “his impression” was that he was attempting to draw a pistol." Held, that it was error to exclude this testimony. Latham v. State, 172 S. W. 797 (Tex. Cr. App.).

The lower court excluded the evidence on the ground that it was opinion

evidence. Where a witness is testifying to a person's actions or appearance the courts rightly show considerable freedom in allowing him to state his conclusion after relating all the facts, if it is otherwise difficult to convey the real situation to the jury. Redford v. Birley, i St. Tr. N. S. 1071, 1134; Commonwealth v. Dowdican, 114 Mass. 257; State v. Buchler, 103 Mo. 203, 15 S. W. 331. See 3 WIGMORE, EVIDENCE, $$ 1924, 1962, 1974. But if the witness's opinion, rather than the subject of it, is the evidential fact, it should be admissible entirely apart from the opinion rule. See GA. CODE, 1911, $ 5874. Thus other people's statements are admissible when themselves evidential and not merely evidence of what they relate. See Bacon v. Towne, 4 Cush. (Mass.) 217, 240. In the principal case, the defendant had to show both that he thought the deceased would shoot and that he thought so reasonably. People v. Kennedy, 159 N. Y. 346, 54 N. E. 51. See 1 BISHOP, CRIMINAL LAW, 8 ed., $ 305; 13 Harv. L. REV. 223. What a disinterested bystander thought the deceased would do is at least slightly probative of the reasonableness of defendant's opinion, and would apparently fall under no excluding rule. Yet such evidence is usually not admitted under a plea of self-defense. State v. Rhoads, 29 Oh. St. 171; Smith v. Commonwealth, 113 Ky. 19, 67 S. W. 32; Lowman v. State, 109 Ga. 501, 34 S. E. 1019. Contra, Thomas v. State, 40 Tex. 36; Cochran v. State, 28 Tex. App. 422, 13 S. W. 651; see Hawkins v. State, 25 Ga. 207, 210. Though it would seem more reasonable to consider the evidence admissible, it may have been unwise for the court here to overrule the trial judge in his determination of the value of remotely relevant evidence, which depends so largely on discretion. See THAYER, PRELIMINARY TREATISE ON EVIDENCE, P. 516.

FEDERAL COURTS — JURISDICTION AND POWERS IN GENERAL - ENJOINING STATE PUBLIC SERVICE COMMISSION FROM ENFORCING STATUTE. — A statute of New Hampshire created a public service commission with power to promulgate and enforce rates and regulations, and provided that when the commission denied a rehearing there should be an appeal to the state supreme court. A railroad brought proceedings before the commission to test the constitutionality of a “mileage-book” statute which the commission was enforcing. It was held constitutional and a rehearing denied. Thereupon the railroad brings suit in the federal District Court to enjoin the enforcement of the statute by the commission. Held, that the proceedings will be held in abeyance until the railroad shall have exhausted its remedies before the state tribunals. Boston & Maine R. Co. v. Niles, 218 Fed. 944 (Dist. Ct., N. H.).

When the law deals with an administrative tribunal like this public service commission, with its combined legislative, executive, and judicial powers, its ordinary classifications necessarily break down. Proper results cannot be obtained without an analysis of the function being exercised in any given case. In determining their relations with state commissions of this sort, therefore, it is entirely proper that the federal courts should have made their interference depend upon the kind of action undertaken by the commission.

The purely legislative matter of promulgating a rule or fixing a rate, it is clear that the federal courts will not enjoin. It has likewise been held that the federal courts will not interfere when the state legislative machinery is not yet exhausted because of the power of the state reviewing tribunal to substitute an order which it may deem proper. Prentis v. Atlantic Coast Line Co., 211 U. S. 210. After the rule has been settled, however, and the legislative stage passed, there may be an injunction in a proper case even though the state law expressly provides for an appeal to the state courts to test the propriety of the action. Bacon v. Rutland R. CO., 232 U. S. 134. To this extent at least the Supreme Court has recognized that a commission is not a “court” within $ 256 the Federal Judicial Code, which forbids an injunction against a state court except in bankruptcy cases. See Prentis v. Atlantic Coast Line Co., supra; 36 STAT. AT

L. 1162. But when, as in the principal case, the only question raised before the commission is as to the constitutionality of a statute which it is enforcing, the action of the commission is purely judicial in its nature. Consequently an appearance before the commission on such a matter would be equivalent to going into a state court, and under the ordinary doctrines of comity the federal court would then properly refuse to entertain the petition until the remedies afforded by the state courts had been exhausted. Peck v. Jenness, 7 How. 612; see note to Louisville Trust Co. v. Cincinnati, 22 C. C. A. 359. The apparent inconsistency involved in denying that the commission is a court within the Judicial Code, and at the same time recognizing its judicial character for the purposes of comity when it passes on the validity of a statute, should offend no

The difficulty is not substantial, and results merely from paucity of legal terminology.


ILLEGAL CONTRACTS CONTRACTS AGAINST PUBLIC POLICY - CONTRACT TO WAIVE STATUTORY ABOLITION OF THE FELLOW SERVANT RULE. — State statutes abolished the fellow servant rule as applied to railroad employees, and substituted a rule of comparative negligence for the defense of contributory negligence. Miss. Laws, 1908, c. 194; Miss. Laws, 1910, C. 135. In his contract of employment the plaintiff assumed the risk of all injuries arising out of his own or a fellow servants negligence. He was injured through his own negligence combined with that of a fellow employee. Held, that he may recover. Illinois Central R. Co. v. Harris, 67 So. 54 (Miss.).

A contract by which an employer is absolved from liability for negligent injury to his employees is generally held void as against public policy. Little Rock & F. S. Ry. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808; Consolidated Coul Co. v. Lundak, 196 Ill. 594, 63 N. E. 1079; contra, Western & Atlantic R. Co. v. Bishop, 50 Ga. 465. In England, however, a contract waiving the statutory abolition of the fellow servant rule is valid. Griffiths v. Earl of Dudley, 9 Q. B. D. 357. But in this country the contrary view prevails. Atchison, T. & S. F. Ry. Co. v. Fronk, 74 Kan. 519, 87 Pac. 698; Tarbell v. Rutland R. Co., 73 Vt. 347, 51 Atl. 6. Similarly where the vice-principal doctrine is adopted, a contract waiving recovery for injury by a negligent vice-principal is invalid. Lake Shore & M. S. Ry. Co. v. Spangler, 44 Oh. St. 471, 8 N. E. 467; cf. Little Miami R. Co. v. Stevens, 20 Oh. 415. In general, wherever a statute regulating the relation of master and servant is reinforced by criminal penalties, a private agreement to waive its benefits would be clearly invalid. Ten-Hour Law for Street Ry. Corporations, 24 R. I. 603, 54 Atl. 602; Short v. Bullion-Beck & Champion Mining Co., 20 Utah 20, 57 Pac. 720. See Holden v. Hardy, 169 U.S. 366, 397; 26 HARV. L. REV. 262. On the other hand, a contract to waive the benefits of a civil statute designed to protect only the parties to the contract will be enforced; but if the purpose of the statute was to benefit the public generally the waiver will be invalid. The view of the principal case that it is against the policy of the statute to allow it to be waived seems sound, and in accord with the principles usually followed in this country.

ILLEGAL CONTRACTS CONTRACTS COLLATERALLY RELATED TO SOMETHING ILLEGAL OR IMMORAL ACTION BY MONOPOLY ON CONTRACT LEGAL IN ITSELF. - In an action to recover the price of goods sold to the defendant, the latter alleged as a defense that the plaintiff was an illegal monopoly of all the glucose manufacturers in the United States; and that for the purpose of perpetuating its control of the market the plaintiff had devised a profit-sharing scheme whereby rebates were paid to all purchasers provided that during the year last preceding they had dealt only with the plaintiff; and that each contract denied the right of the purchaser to resell. Held, that the answer alleged no defense.

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