hoped that the American courts, in which this situation has apparently never arisen, will not follow this illogical rule.

SCHOOLS AND SCHOOL DISTRICTS - DIPLOMA MANDAMUS FOR DIPLOMA FOR UNQUALIFIED STUDENT ALLOWED TO TAKE PART IN GRADUATION EXERCISES. Although the plaintiff had not qualified for graduation, the school board, in order to save his parents from humiliation, allowed him to take part in the graduation exercises, for which he bought a class button and the class flower. The real diplomas had not yet come from the printer, and he with the others was given a dummy diploma. Later the school board refused to give him a real diploma, and he demands a mandamus to compel them to. Held, that he is not entitled to his writ. Sweitzer v. Fisher, 154 N. W. 465 (Ia.).

If a student's record has been determined to be satisfactory, and the duty of giving a degree has become ministerial, he is entitled to a mandamus to compel the school board to graduate him. Keller v. Hewitt, 109 Cal. 146, 41 Pac. 871; State v. Lincoln Medical College, 81 Neb. 533, 116 N. W. 294. Cf. People v. Bellevue Hospital Medical College, 60 Hun 107, 14 N. Y. Supp. 490. But the determination of his record is for the school board and a mandamus will not issue to control the exercise of so discretionary a power. People v. New York Law School, 68 Hun 118, 22 N. Y. Supp. 663; People v. New York, etc. College, 20 N. Y. Supp. 379; Niles v. Orange Training School, 63 N. J. L. 528, 42 Atl. 846. As the plaintiff's record, in the principal case, had in fact been determined to be unsatisfactory, his claim can only be supported on the ground that the school board, after allowing him to participate in the forms of graduation and to incur expense thereby, cannot now be heard to say that he was unqualified to do so. However, as there is a public interest in having degrees represent a certain standard of attainment, it is submitted that not by estoppel, nor even by express contract, should a school board be able to bind itself to issue a degree to an unqualified student, or be bound by a degree so issued. See City of Joliet v. Werner, 166 Ill. 34, 41, 46 N. E. 780, 782. There is a further ground for the decision in the feasibility of an appeal to the county superintendent, for mandamus is essentially an extraordinary remedy. Marshall v. Sloan, 35 Ia. 445; Stockton v. Board of Education, 72 N. J. L. 80, 59 Atl. 1061.

SURETYSHIP

SURETY'S DEFENSES

WHETHER AFFECTED BY RISE OF SURETYSHIP AS BUSINESS UNDERTAKING. The defendant surety company became surety on a bond for a contractor, who promised to pay for all materials used by him. The plaintiff, who furnished materials, accepted from the contractor short-time notes and renewals of them. On the contractor's failure to pay the notes, the plaintiff sued the surety company on the bond. Held, that the defendant is liable. People v. Traves, 154 N. W. 130 (Mich.).

A corporation obtained a loan from the plaintiff, and gave as security a warehouse receipt for goods worth more than the amount of the loan, and notes made by the corporation, and signed by its five stockholders as indorsers. The plaintiff surrendered the warehouse receipt to the corporation, and on its failure to repay the loan, sued two of the stockholders on the notes. Held, that the defendants are liable. Mercantile Trust Co. v. Donk, 178 S. W. 113 (Mo.).

For a discussion of these cases, see NOTES, p. 314.

TAXATION - JOINT STOCK COMPANIES LIABILITY UNDER FEDERAL CORPORATION TAX. - The plaintiff brings suit as president of the United States Express Company, a joint stock company of New York, to recover money paid as taxes under the Federal Corporation Tax Law which provides that "every corporation . . . joint stock company or association, organized

for profit and having a capital stock represented by shares. . . now or hereafter organized under the laws of the United States or of any state or territory of the United States" shall be subject to the tax. Held, that the Express Company was properly taxed. Roberts v. Anderson, 226 Fed. 7 (C. C. A., 2nd Circ.).

It seems clear that a joint stock company may be taxed under the statute if otherwise within its terms. See Flint v. Stone Tracy Co. (The Corporation Tax Cases), 220 U. S. 107, 145, 162; Eliot v. Freeman, 220 U. S. 178, 185. The question then remains whether the United States Express Company is organized under the laws of New York within the meaning of the act. Now it is clear that a joint stock company possessing only common-law powers is not organized under the laws of a state. Eliot v. Freeman, supra. But a New York joint stock company possesses in substance all corporate attributes save that of limited liability. See Hibbs v. Brown, 190 N. Y. 167, 177, 82 N. E. 1108, 1III; People v. Wemple, 117 N. Y. 136, 144, 22 N. E. 1046, 1047. And at least the power to sue and be sued in the name of one of the members is statutory and distinctively corporate. Cf. Hybart v. Parker, 4 C. B. N. S. 209, with Van Aernam v. Bleistein, 102 N. Y. 355, 7 N. E. 537. See 2 COOK, CORPORATIONS, 7 ed., §§ 503, 508. Since the company thus does business in a corporate capacity by reason of powers which it takes from New York laws, it would seem to follow that it is organized under those laws within the meaning of the act, and so is subject to the tax. People v. Wemple, supra. Cf. Oliver v. Liverpool Ins. Co., 100 Mass. 531; Liverpool Ins. Co. v. Massachusetts, 10 Wall. (U. S.) 566.

TAXATION

PARTICULAR FORMS OF TAXATION - INHERITANCE TAX: TAXATION OF FOREIGN REAL ESTATE EQUITABLY CONVERTED. A testator domiciled in Illinois left realty in Illinois and in Ohio. He directed that all his property be sold and the proceeds distributed among legatees, some of whom were residents of Ohio. He appointed a resident of Ohio one of his executors, who took out ancillary administration there, and distributed the proceeds of the sale of the Ohio land among the legatees resident in Ohio. Illinois seeks to collect from the Illinois executor a tax on the succession to this property. Held, that it may not do so. People v. Kellogg, 109 N. E. 304 (Ill.).

A state cannot impose a tax upon the succession to real estate outside its territory. In re Swift, 137 N. Y. 77, 32 N. E. 1096; Bittinger's Appeal, 129 Pa. St. 338, 18 Atl. 132. But it is universally held that succession to personalty, no matter where it is located, may be taxed at the domicile of the descendent, because the state of actual situs of the property permits the law of the domicile to govern its descent and distribution. In re Swift, supra; Frothingham v. Shaw, 175 Mass. 59, 55 N. E. 623. See Dos PASSOS, INHERITANCE TAX Law, 2 ed., § 46. This same situation exists in the case of equitable conversion, for though the state of the situs governs the descent of the legal title by its own law, it permits the law of the domicile to determine the succession to the proceeds. In re Piercy, [1895] 1 Ch. 83; Jenkins v. Guarantee Trust, etc. Co., 53 N. J. Eq. 194, 32 Atl. 208. It would seem, then, that the state of the domicile has power to tax succession to the proceeds in such a case, as in any case of succession to personal property, but outside of Pennsylvania no attempt to levy such a tax has been made. Connell v. Crosby, 210 Ill. 380, 71 N. E. 350; In re Swift, supra, 88. See McCurdy v. McCurdy, 197 Mass. 248, 250, 83 N. E. 881, 882. In the Pennsylvania cases, the property was actually brought into the state of the domicile for the purpose of distribution and this limit to the broad doctrine as there expounded has been suggested. Miller v. Commonwealth, 111 Pa. St. 321, 2 Atl. 492; Williamson's Estate, 153 Pa. St. 508, 26 Atl. 246; Dalrymple's Estate, 215 Pa. St. 367, 64 Atl. 554. See Hale's Estate, 161 Pa. St. 181, 183, 28 Atl. 1071, 1072. The

principal case is not within the doctrine as thus limited, and the result is no doubt equitable, for at no time did the Illinois executor have power to collect the tax out of the proceeds that were distributed in Ohio. Yet this consideration has had no weight where the question was simply that of succession to personal property. In re Hodges, 150 Pac. 344 (Cal.).

TORTS - NATURE OF TORT LIABILITY IN GENERAL EFFECT OF BAD MOTIVE IN PERSUADING TENANTS NOT TO DEAL WITH THE PLAINTIFF. The defendant, without any coercion, induced his tenants, who had short term leases, to cease using electric power furnished by the plaintiff. The defendant did this because he was an enemy of one of the plaintiff's officers. The plaintiff sues to enjoin this action of the defendant. Held, that the injunction will be denied. People's Land & Mfg. Co. v. Beyer, 154 N. W. 382 (Wis.).

By the sounder view, damage caused intentionally is primâ facie actionable. See 29 HARV. L. REV. 86. There is authority that this rule does not apply to the use of one's own property. Mahan v. Brown, 13 Wend. (N. Y.) 261; Letts v. Kessler, 54 Oh. St. 73, 42 N. E. 765. But the better view is that a defendant should be held liable, even in such cases. Flaherty v. Moran, 81 Mich. 52, 45 N. W. 381. See Horan v. Byrnes, 72 N. H. 93, 54 Atl. 945. Again, by the trend of present authority, a defendant, who, with the sole motive of injuring the plaintiff, has indirectly injured him by influencing the conduct of third persons, is held liable even though no breach of contract was involved. Lumley v. Gye, 2 El. & Bl. 216; Walker v. Cronin, 107 Mass. 555; Tuttle v. Buck, 107 Minn. 145, 119 N. W. 946; Lewis v. Bloede, 202 Fed. 7. Contra, Passaic Print Works v. Ely, etc. Co., 105 Fed. 163. No reason is perceived why the same result should not follow when the defendant makes use of his position as a landlord to injure the plaintiff indirectly, without justification. See Chesley v. King, 74 Me. 164. Nor can it be argued that the defendant in the principal case had the undisputed right of an owner to employ on his land the people most acceptable to him, for however short the leases, it is clear that he had conveyed away the present rights of ownership at least to such an extent that the plaintiffs were not his but his tenants' employees. Hence if he acted solely from a desire to injure the plaintiff, the injunction should have been granted. However, if he acted to any extent with the motive of protecting his reversionary interest, the plaintiff was rightly refused relief.

TRIAL

VERDICT - JOINT TORTFEASORS: SEVERANCE OF DAMAGES. A passenger was hurt in a collision between a street car and a train. He sued both companies. The jury found a verdict against both defendants, assessed damages at $10,000, and ordered that one defendant pay $6,000 and the other $4,000. The trial court entered judgment for $10,000 against both. Held, that the judgment must be reversed and a new trial had. Rathbone v. Detroit United Ry., 154 N. W. 143 (Mich.).

The defendants here are joint tortfeasors. Mathews v. Delaware L. & W. R. Co., 56 N. J. L. 34, 27 Atl. 919. This being so, they are both liable for all the damage suffered by the plaintiff; the jury must simply find that damage, and, in the absence of statute, cannot apportion it among them. Hill v. Goodchild, 5 Burr. 2790. Contra, White v. M’Neily, 1 Bay (S. C.) 11. The trial court should enforce this rule, when necessary, by sending back the jury to bring in a proper verdict; there is then no further difficulty. Fuller v. Chamberlain, II Met. (Mass.) 503; Washington Market Co. v. Clagett, 19 App. D. C. 12; Olson v. Nebraska Telephone Co., 87 Neb. 593, 127 N. W. 916. When this is not done it leaves the verdict irregular. But ordinarily a verdict that decides the issue is not vitiated by the addition of something beyond the jury's power to add. The unauthorized addition, if fairly severable from the other findings, may be stricken out as surplusage and judgment entered on the rest. Statler

v. United States, 157 U. S. 277; Southern Ry. Co. v. Oliver, 1 Ga. App. 734, 58 S. E. 244. Cf. Barth v. State, 18 Conn. 432. But in split verdict cases there is sometimes simply a finding of several sums against separate defendants, and it is then felt that the jury have not clearly found the plaintiff's damages to be an amount larger than the largest sum found against any particular defendant. He can therefore have judgment only for that sum, though the judgment is sometimes against all the defendants and sometimes against the particular defendant only. O'Shea v. Kirker, 8 Abb. Pr. Rep. 69; Holley v. Mix, 3 Wend. (N. Y.) 350; Halsey v. Woodruff, 9 Pick. (Mass.) 555. See Crawford v. Morris, 5 Gratt. (Va.) 90, 103. Even when there is a finding of the total and then a separation, some courts treat the case like those just discussed. Schultz v. Hunter, 2 Browne (Pa.) 233. If the plaintiff treats it in this way and remits damages accordingly, there can be no objection. Warren v. Westrup, 44 Minn. 237, 46 N. W. 347; Nashville Ry. & Light Co. v. Trawick, 118 Tenn. 273, 99 S. W. 695. But if he claims judgment against all the defendants for the total, it is submitted that he ought to have it. His damages clearly have been found equal to the total, the rest of the verdict is an unauthorized addition fairly severable from the prior finding, and ought to be discarded as surplusage. Currier v. Swan, 63 Me. 323; Westfield, etc. Co. v. Abernathy, 8 Ind. App. 73, 35 N. E. 399; San Marcos, etc. Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151. See Post v. Stockwell, 34 Hun (N. Y.) 373, 374. Contra, Whitaker v. Tatem, 48 Conn. 520. Since the damages are measured solely by the extent of the plaintiff's injury, to argue, as the court here does, that the amount found would have been different had the jury realized that the defendants must be jointly liable, is to assume that understanding of the law would make the jury change its conclusions as to fact, an assumption not to be indulged. See Raphael v. Bank of England, 17 C. B. 161.

TRUSTS RESTRAINTS ON ALIENATION OF CESTUI'S EQUITABLE LIFE ESTATE EFFECT OF ACQUISITION OF REMAINDER BY CESTUI. — A fund was left to trustees to hold for the plaintiff's life and apply the income to his use, the principal after his death to revert to the testator's estate. The residuary legatees who inherited this reversionary interest sold it to the plaintiff who now prays for a decree dissolving the trust. The decree was refused. Dale v. Guaranty Trust Co., 773 N. Y. Comb. 601 (App. Div., 1st Dept.).

The trust described fell within the New York statute declaring the cestui's interest in an income to be applied to his use for life to be inalienable. NEW YORK PERSONAL PROPERTY LAW (CONSOL. LAWS, ch. 41 [LAWS OF 1909, ch. 45], $ 15). Authorities differ as to the nature of the reversionary interest. The trustees may be regarded as possessing the absolute legal title, the plaintiff having an equitable life estate and the acquired equitable reversion in fee. See 1 PERRY, TRUSTS, 5 ed., § 318. Secondly, it is suggested that the trustees have an estate for the plaintiff's life, followed by a legal reversion in fee held by the plaintiff. See Stevenson v. Mayor of Liverpool, L. R. 10 Q. B. 81, 85; Nicoll v. Walworth, 4 Denio (N. Y.) 385, 390; Moore's Estate, 198 Pa. St. 611, 612. If the cestui here acquired an equitable reversion, his life estate could not merge therein in violation of the statute, so far as to give him an alienable equitable fee. See Moore's Estate, supra. But if such a merger were possible and the life estate extinguished, then by the rule of common law the cestui could force the trustee to transfer to him the legal life estate. Inches v. Hill, 106 Mass. 575. See 2 PERRY, TRUSTS, 5 ed., § 816 a. On the other hand, if the cestui acquired a legal reversion, no question of merger could ever arise, for there can be no fusion of estates of dissimilar nature. Moore's Estate, supra. In such case the plaintiff prays the dissolution of an active trust without any justification. By a former New York statute, when a cestui acquired the remainder or a part thereof, he could release his life interest to himself, where

upon the trustee's legal estate would cease. NEW YORK PERSONAL PROPERTY LAW (GEN. LAWS, ch. 47; LAWS OF 1897, ch. 417). This provision, however, was omitted from subsequent legislation, as was logically necessary, for if New York is to support its spendthrift trust doctrine, it should not maintain a legislative loophole, especially since such a policy might give remainders an inflated value.

BOOK REVIEWS

PATHOLOGICAL LYING, ACCUSATION, AND SWINDLING. By William Healy and Mary Tenney Healy. Boston: Little, Brown, and Company. 1915. Criminal Science Monograph No. 1, Supplement to the Journal of Criminal Law and Criminology. pp. ix, 286.

At the present time there is a healthful tendency in the community to try to understand some of the phenomena which heretofore have been considered only by the penologists. It is high time that a scientific attempt be made to explain delinquencies. Criminology, after all, is not an exclusively "legal" subject. In many of its aspects it is a borderland, or rather a land of concurrent sovereignty, which concerns the judges, lawyers, social workers, administrators, as well as physicians, psychiatrists, and criminal anthropologists.

This volume is the first of a series of monographs authorized by the American Institute of Criminal Law and Criminology and published as supplements to the Journal of Criminal Law and Criminology. As stated in the editorial announcement, this series is to include researches in various departments of knowledge upon which criminology draws, such as psychology, anthropology, neurology, education, sociology, and law, and it is anticipated that the series will stimulate the study of problems of delinquency.

The object of the authors appears, from the Preface as well as from the contents of the book, to be to classify the offenders according to typical characteristics. The material presented consists of case studies made by the Juvenile Psychopathic Institute of Chicago, of which Dr. William Healy is the Director. The book is divided into six chapters. The first is an introductory one, giving definitions and delimiting the problem; the second considers the literature on the subject, which is scanty; the third discusses twelve case studies of pathological lying and swindling; the fourth contains nine case studies of pathological accusation; in the fifth, six case studies are detailed as borderline mental types. The final chapter sums up the study.

The subject of pathological lying and swindling has only recently been considered as a psychiatric problem. The contribution to the subject, in this volume, consists largely in adding to the casuistic literature on the special topic without offering much in the way of explanation of the etiology or the pathology of this condition, or, in consequence, any very definite points for guidance in treatment. Dr. Healy is well known as a believer in intensive case study, paying great attention to all externals of personality.

The definition of pathological lying given in the introductory chapter is as follows: "Pathological lying is falsification entirely disproportionate to any discernible end in view, engaged in by a person who, at the time of observation, cannot definitely be declared insane, feeble-minded, or epileptic." This is, in a few words, the underlying idea of the entire volume. According to this, "the pathological liar forms a species by himself, and as such does not necessarily belong to any of the larger classes of epilepsy, insanity, or mental defect." Pathological accusation is similarly defined as a false accusation indulged in apart from any obvious purpose.