v. Templeton, 185 U. S. 487. So that to those coming within the qualifications, the privilege of voting is ultimately secured by the Constitution, and within the protecting power of Congress. Ex parte Yarbrough, supra; see Wiley v. Sinkler, 179 U. S. 58. The well-considered opinion in the principal case would therefore seem clearly correct.

CONTRACTS DEFENSES: FRAUD- MISSTATEMENT OF PRINCIPAL'S MINIMUM SELLING PRICE BY AGENT AUTHORIZED TO RETAIN WHOLE SURPLUS. A broker, authorized to sell certain land at $12,000 or any higher price and retain the whole surplus, stated to the buyer that the land could not be bought for less than $12,500. Later, under pretence of having seen the owner at the defendant's request, he declared that the owner would take no smaller sum. He now sues on a check for $500 given by the buyer to complete payment for the land at that price and the buyer pleads fraud. Held, that the broker may recover. Aronowitz v. Woollard, 152 N. Y. Supp. 11 (App. Div.).

Courts have gone far to justify seller's talk as immaterial, or expressing opinion only, and to hold the buyer to a standard of care. Page v. Parker, 43 N. H. 363; Mooney v. Miller, 102 Mass. 217; Graffenstein v. Epstein & Co., 23 Kan. 443. See 2 KENT, COм. 486. The overworking of these methods of approaching the problem has been criticised. See 8 HARV. L. REV. 63; 15 id. 576; 25 id. 472. But the misstatement by the seller of the lowest price he will accept furnishes an instance where "seller's talk" must be permitted although the statement is one of material fact and the buyer may not be negligent, because the inherent nature of a bargain would render any other rule highly unreasonable and impracticable. And there is much reason to extend this exemption to the agent, especially where, as in the principal case, he is the only party interested in keeping up the price. Ripy v. Cronan, 131 Ky. 631, 115 S. W. 791; McLennan v. Investment Exchange Co., 170 Mo. App. 389, 156 S. W. 730; cf. Merryman v. David, 31 Ill. 404. Contra, Hokanson v. Oatman, 165 Mich. 512, 131 N. W. 111. In the principal case, as the agent has gone further and has led the buyer to believe that the seller had been given an opportunity to reconsider, it is possible that he has exceeded his privilege and that his recovery should accordingly be defeated on account of fraud. Kice v. Porter, 22 Ky. L. Rep. 1704, 61 S. W. 266. But it seems proper to allow the buyer to reap no benefit from his meddlesome questions which would unfairly prejudice the plaintiff's bargain if truthfully answered or ignored.

CORPORATIONS DISTINCTION BETWEEN CORPORATION AND ITS MEMBERS - DISREGARDING THE CORPORATE FICTION. The defendant by fraud obtained patents to certain lands. In order to keep the title concealed until after the statutory period for setting aside these patents had elapsed, he organized a corporation to which he conveyed the lands, but failed to record the conveyance. Suit to annul the patents was brought against him within the statutory period; but the corporation was not joined until after the statutory period had elapsed. Held, that the patents may be annulled. Linn & Lane Timber Co. v. United States, 236 U. S. 574.

Where a new party is brought into a suit, the Statute of Limitations continues to run as to him until actually made a party. Shaw v. Cock, 78 N. Y. 194; Miller v. M'Intyre, 6 Pet. (U. S.) 61. But the court in the principal case declares that since the corporation was the mere tool of the defendant, it will not be treated as a new party. It is generally said that the courts will disregard the fiction of a separate corporate entity whenever this becomes necessary to the attainment of justice. 3 Cook, CORPORATIONS, 7 ed., §§ 663, 664; 2 MORAWETZ, PRIVATE CORPORATIONS, § 227. Such broad statements have led to much loose thinking. In nearly all the cases, moreover, the desired

result could have been reached on other more satisfactory grounds. See 20 HARV. L. REV. 223; 27 id. 386. And in general, the courts should be extremely cautious in relying upon a principle so vague, and so likely to breed confusion in the law of corporations. See Gallagher v. Germania Brewing Co., 53 Minn. 214, 219. But where the corporate machinery is obviously being used to perpetrate a fraud, and where a just result can be reached on no other theory, it is perfectly justifiable to disregard the fiction. The peculiar interest of the principal case lies in the fact that it appears to be one of the few instances in which a disregard of the fiction is really necessary. It is still barely possible, however, that the same result might have been reached on the ground that by colluding with the grantee to perpetrate his fraud, the corporation had estopped itself from setting up the statute. See Union Mortgage, Banking & Trust Co. v. Peters, 72 Miss. 1058, 18 So. 497; Bridges v. Stephens, 132 Mo. 524, 543.

CORPORATIONS - STOCKHOLDERS: RIGHTS INCIDENT TO MEMBERSHIP SUIT IN BEHALF OF CORPORATION: EFFECT OF PRIOR SUIT BY ANOTHER STOCKHOLDER. The plaintiff brought a shareholder's bill to have a contract between his corporation and a third party set aside as fraudulent. The defendant set up a prior suit by another shareholder in which the agreement had been attacked as voluntary and ultra vires. Held, that the matter is res judicata. Dana v. Morgan, 219 Fed. 313 (Dist. Ct., S. D., N. Y.).

A shareholder's bill is founded upon the right of the shareholder to compel the corporation to assert some right or defense which it has against the third party. Hearst v. Putnam Mining Co., 28 Utah 184, 77 Pac. 753. The corporation is, therefore, a necessary party; and its refusal to sue, or facts disclosing the futility of a demand for suit, must be alleged. Davenport v. Dows, 18 Wall. (U. S.) 626; Hawes v. Oakland, 104 U. S. 450; Mount v. Radford Trust Co., 93 Va. 427, 25 S. E. 244. Since, in substance, a right of the corporation is in issue, an adjudication on the merits bars a subsequent action either by the corporation or by another shareholder. Montezuma Cattle Co. v. Dake, 16 Colo. App. 139, 63 Pac. 1058; Hearst v. Putnam Mining Co., supra; Alexander v. Donohoe, 143 N. Y. 203, 38 N. E. 263. But if the prior action does not go to the merits, as where the suit is dismissed for failure to allege the refusal of the corporation to sue, a subsequent action can be maintained. The Telegraph v. Lee, 125 Ia. 17, 98 N. W. 364. The principal case correctly disallows a second action even though relief was asked on a varied ground. See Fayerweather v. Ritch, 91 Fed. 721, 725. This result, although perhaps occasionally depriving a corporation of a right of action lost through a shareholder's unsuccessful method of presentation, seems justifiable as a deterrent to corporate inaction. It would, of course, not follow were the shareholder suing in his own right. See Morris v. Elyton Land Co., 125 Ala. 263, 28 So. 513.

DEATH BY WRONGFUL ACT - DEFENSES TO STATUTORY LIABILITY - RELEASE BY DECEASED. The plaintiff's husband, who was killed by defendant's negligence, before his death gave a full release of all claims. The widow now sues, under a statute giving the next of kin an action where death is caused by negligence. Held, that she may recover. Rowe v. Richards, 151 N. W. 1001 (S. D.).

For a discussion of the questions raised by this case, see NOTES, p. 802.

DEATH BY WRONGFUL ACT - STATUTORY LIABILITY IN GENERAL — LIABILITY TO WIDOW WHO MARRIED DECEASED AFTER INJURY. – The deceased, after being mortally injured through the defendant's negligence, married the plaintiff who had previously become engaged to him. The plaintiff now sues

as executrix under N. Y. CODE CIV. PROC., §§ 1902-4, which allows the personal representative of the deceased to recover for the benefit of the widow or next of kin the pecuniary loss resulting from the death to the statutory beneficiaries. Held, that she may recover substantial damages. Radley v. Le Ray Paper Co., 108 N. E. 86 (N. Y.).

The so-called death statutes modeled after Lord Campbell's Act have been generally held to create a new right, unknown to the common law, vesting in the statutory beneficiaries on the death of the injured person. Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 145, 58 N. E. 50. See Needham v. Grand Trunk Ry. Co., 38 Vt. 294, 304. Contra, Dolson v. Lake Shore & M. S. Ry. Co., 128 Mich. 444, 87 N. W. 629. The right is thus not a survival of the deceased's cause of action and no damages can be recovered for personal injuries to him. Meekin v. Brooklyn Heights R. Co., supra. Furthermore, the statute here grants recovery only for pecuniary loss suffered by the beneficiary, and it is settled that no damages for injuries to feelings and loss of companionship will be recognized. Tilley v. Hudson River R. Co., 24 N. Y. 471. Therefore, though the plaintiff, as widow of the deceased, is clearly within the description of the statute and entitled to at least nominal damages, she cannot claim, as widow, damages received as fiancée, since no right of action is given a fiancée. Hence the measure of her recovery should be her husband's probable expectancy of life at the time of the marriage. To be sure, a posthumous child has been allowed to recover damages based on the father's expectancy at the time of the accident. The George & Richard, 1 L. R. 3 A. & E. 466, 480; Nelson v. Galveston, H. & S. A. Ry. Co., 78 Tex. 621, 14 S. W. 1021. But this recovery can only rest upon the inchoate right of an unborn child to the support of its parent, a right peculiar in that it is broken as soon as it arises. See 15 HARV. L. REV. 313. It is submitted that a fiancée has no analogous inchoate right to the support of her future husband in addition to her rights arising from the contract to marry. Yet the principal case is in accord with the only other direct authority on the point. Gross v. Electric Traction Co., 180 Pa. St. 99, 36 Atl. 424.

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DEEDS - CONSTRUCTION AND OPERATION IN GENERAL - EFFECT REDELIVERY OF AN UNRECORDED DEED TO THE GRANTOR IN ORDER TO DIVEST TITLE FROM THE GRANTEE. - The plaintiff sold land and, to avoid recording his own deed, redelivered it to his grantor and had a deed made directly to the purchaser, who entered into possession, paid the full purchase price and made various improvements. The plaintiff now tries to recover back the land upon the ground that, since the contract was by parol, he was not divested of his legal title. Held, that the plaintiff is estopped from asserting his title. Rowe v. Epling, 173 S. W. 801 (Ky. App.).

Under the recording acts, the title of a vendee cannot be defeated by an unrecorded deed of which he had no notice. Ely v. Brewer, 62 So. 742 (Ala.). But ordinarily the purchaser would have full notice of the prior deed in situations like that in the principal case, and cannot claim protection on this theory. And the weight of authority holds that the statute of frauds prevents the revesting of title in the grantor by the mere redelivery or cancellation of the deed. Botsford v. Morehouse, 4 Conn. 550. Contra, Commonwealth v. Dudley, 10 Mass. 403. See I DEVLIN, DEEDS, 3 ed., § 300. But the courts usually give the new purchaser relief on the ground that the grantee is estopped from asserting his legal title. Potter v. Ādams, 125 Mo. 118, 28 S. W. 490; Howard v. Huffman, 3 Head (Tenn.) 562. Contra, Raynor v. Wilson, 6 Hill (N. Y.) 469. The elements of a strict estoppel are not present if it be assumed that the vendee knows the real situation. But the result may be supported upon the theory that the grantee, by deliberately destroying the evidence of his title, is precluded from setting up secondary evidence to defeat his intention.

Gugins v. Van Gorder, 10 Mich. 523; Parker v. Kane, 4 Wis. I, 12; Farrar v. Farrar, 4 N. H. 191, 195. See 18 HARV. L. REV. 105, 110. Other jurisdictions protect the purchaser by enjoining the grantee from setting up his legal title. Russell v. Meyer, 7 N. D. 335, 75 N. W. 262; Reavis v. Reavis, 50 Ala. 60. And wherever the transaction between the grantee and his vendee is itself in writing, or is taken out of the statute of frauds by part performance, as in the principal case, the vendee's equity for specific performance independently secures him against the grantee's assertion of his legal title. Whisenant v. Gordon, 101 Ala. 256, 13 So. 914.

EMINENT DOMAIN - WHEN IS PROPERTY TAKEN - LOSS CAUSED BY FEDERAL SHIFTING OF HARBOR LINES. Pursuant to the authority given him by Congress to fix harbor lines in waters navigable for interstate purposes beyond which riparian owners should not build, the Secretary of War fixed a line in the Elizabeth River which took in the plaintiff's wharf. The plaintiff showed that his wharf had been erected in conformity with state regulation, and also did not transgress an earlier federal line established after his wharf was built, and asked that an injunction issue to prevent its destruction without compensation. Held, that the relief will be denied. Greenleaf Johnson Lumber Co. v. Garrison, 237 U. S. 251.

For a discussion of the principles involved, see Notes, p. 806.

EVIDENCE-DECLARATIONS CONCERNING INTENTION, FEELINGS, OR BODILY EXPRESSIONS OF PRESENT PAIN MADE TO A PHYSICIAN AT AN

CONDITION EXAMINATION TO QUALIFY HIM AS A WITNESS. - The defendant's physician examined the plaintiff's injured ankle, not for the purpose of giving medical treatment, but to qualify as a witness at the trial then pending. He was permitted to testify that, upon pressure on the injured part, the plaintiff flinched. The defendant objected that such flinching was a mere declaration of the plaintiff made to a physician for the sole purpose of enabling him to testify. Held, that the testimony is inadmissible. Norris v. Detroit United Ry., 151 N. W. 747 (Mich.).

Expressions of present pain, if involuntary, are admissible, without reference to the hearsay rule. When voluntary, like other attempts to convey thought, they possess a hearsay character, but are nevertheless generally admitted under an exception to the hearsay rule. See 3 WIGMORE, EVIDENCE, §1718. Though a few jurisdictions confine the exception to declarations made to a physician, they are generally held admissible no matter to whom made. Indiana Ry. Co. v. Maurer, 160 Ind. 25, 66 N. E. 156; Baltimore & Ohio R. Co. v. Rambo, 8 C. C. A. 6, 59 Fed. 75. Contra, Reed v. New York Central R. Co., 45 N. Y. 574; Lake St. El. R. Co. v. Shaw, 203 Ill. 39, 67 N. E. 374. And the mere fact that litigation has begun is not a sufficient bar. Matteson v. New York Central R. Co., 35 N. Y. 487. Cf. Mott v. Detroit, etc. Ry. Co., 120 Mich. 127, 79 N. W. 3. However, in many jurisdictions a strict limitation is placed upon the exception where, as in the principal case, the declaration was made to a physician to enable him to testify in an action for the injury. Grand Rapids& Indiana R. Co. v. Huntley, 38 Mich. 537; Darrigan v. New York & New England R. Co., 52 Conn. 285. Contra, Quaife v. Chicago, etc. Ry. Co., 48 Wis. 513, 4 N. W. 658; Kent v. Lincoln, 32 Vt. 591. A few jurisdictions confine this restriction to cases where the plaintiff himself calls the physician for the sole purpose of securing his testimony. Abbot v. Heath, 84 Wis. 314, 54 N. W. 574. But such a distinction is unwarranted, for the danger of fraud and pretence on the plaintiff's part when he has the litigation so closely in mind, is present no matter who called the physician. However, rather than fix for all cases any binding limitation of this sort, it would seem better to let the judge in his discretion determine whether the chance for imposition and

fraud renders the testimony too dangerous to leave to the jury. In any event, the jury, of course, may gauge the weight of the evidence according to the circumstances under which the declarations were made. See Matteson v. New York Central R. Co., supra, p. 491; Kent v. Lincoln, supra, p. 598.

EVIDENCE - HEARSAY: IN GEneral — Use of ACCOUNT-BOOKS TO PROVE NON-DELIVERY OF GOODS. In an action for goods sold, the defendant was allowed to introduce both his books of account and the testimony of his bookkeeper to show that there was no record of receiving the goods. Held, that this was error. Winder v. Pollack, 151 N. Y. Supp. 870 (Sup. Ct., App. Term). The account-books could not be admitted under the ancient shop-book exception, for the defendant had a clerk. Ruggles v. Gatton, 50 Ill. 412. See Smith v. Smith, 163 N. Y. 168, 57 N. E. 300. But this limitation has undoubtedly been frequently relaxed by rather loose statutes. See 2 WIGMORE, EVIDENCE, 1538. Under the shop-book exception, moreover, the evidence was inadmissible on the ground taken by the court, that it was merely negative. Scott v. Bailey, 73 Vt. 49, 50 Atl. 557; Alexander v. Smoot, 13 Ired. (N. C.) 461. But see 2 WIGMORE, EVIDENCE, § 1556. Under the broader exception admitting entries made in the course of duty, this objection should have no force. Peck v. Pierce, 63 Conn. 310, 28 Atl. 524; Bastrop State Bank v. Levy, 106 La. 586, 31 So. 164; Huebener v. Childs, 180 Mass. 483, 62 N. E. 729. Contra, Lawhorn v. Carter, 11 Bush. (Ky.) 7. Of course any record to be thus used as evidence that something did not occur must be both regular and exhaustive. Shaffer v. McCrackin, 90 Ia. 578, 58 N. W. 910; Riley v. Boehm, 167 Mass. 183, 45 N. E. 84. But these books were clearly inadmissible as entries in the course of duty, since the entrant was available in court. Bartholomew v. Farwell, 41 Conn. 107; State Bank of Pike v. Brown, 165 N. Y. 216, 59 N. E. 1. There is, however, still a third possible way of introducing this kind of evidence. Under modern statutes allowing parties to testify in their own behalf, account-books can be used to supplement or refresh a witness' memory, and the shop-book exception becomes unnecessary. Nichols v. Haynes, 78 Pa. 174; Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S. W. 904. Bushnell v. Simpson, 119 Cal. 658, 51 Pac. 1080. See 2 WIGMORE, EVIDENCE, § 1560. Accordingly, if the books in the principal case were tendered under this last theory, to supplement the clerk's recollection, they should have been admitted, though their proof was merely negative. State v. McCormick, 57 Kan. 440, 46 Pac. 777; Guy v. Mead, 22 N. Y. 462. But see Sanborn v. Fireman's Ins. Co., 16 Gray (Mass.) 448.

FOREIGN CORPORATIONS

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- CONDITIONS UPON THE RIGHT TO DO BUSINESS VALIDITY OF JUDGMENT ON FOREIGN CAUSE of Action Based on SERVICE ON STATE OFFICER. A Louisiana statute provided that suit might be commenced against a foreign corporation which did business in the state by service of process on the secretary of state if the corporation had failed to designate agents on whom process could be served. After such service and with no actual notice, judgment by default was entered against such a corporation in the state court on a cause of action arising outside the state. The corporation now seeks, in the federal court, to enjoin the enforcement of this judgment on the ground of lack of jurisdiction in the state court. Held, that the judgment will be enjoined. Simon v. Southern Ry. Co., 236 U. S. 115.

See this issue, p. 804, for a discussion of the principles involved in this case.

FRANCHISES RIGHT TO ENJOIN COMPETITOR ILLEGALLY DOING BUSINESS WITHOUT LICENSE. - The plaintiff telephone company sought to enjoin a competitor from engaging in the telephone business without a license from the Public Utilities Commission, which was required by law. KANSAS LAWS, 1911,