Sheriff,

Under a statute, (Stat. Ky. § 4141.) which provides that a sheriff shall be liable on his bond "for any misconduct or default of his deputy," a sheriff is liable for the Liability for tortious act of his deputy in unnecessarily and maliciously placing handcuffs on a prisoner, and leading him through the streets of a city while thus handcuffed: Shields v. Pflanz, (Court of Appeals of Kentucky.) 41 S. W. Rep. 267.

Tort of Deputy

Specific Performance, Illegal Contract.

An agreement between two rival applicants for a street railway franchise to combine in order to prevent competition between themselves or by others in procuring the franchise, and to avoid the imposition of conditions by the municipal authorities, is void as against public policy; and equity will not compel the specific performance of such a contract, so as to compel one of the parties to share with the others the fruits of their combination: Hyer v. Richmond Traction Co., (Circuit Court of Appeals, Fourth Circuit,) 80 Fed. Rep. 839.

Public Policy

Insurance

An insurance company cannot be subrogated in case of loss to the insured's right of action against one Subrogation, who sold him the insured property through fraudulent misrepresentations of its value: Farmers' Fire Ins. Co. v. Johnston, (Supreme Court of Michigan,) 71 N. W. Rep. 1074.

Suits Against
State.

According to a recent decision of the Supreme Court of Louisiana, the authority to sue the state, granted by the legislature, includes also the authority to prosecute the suit to judgment, and the authority to keep the judgment in force; and consequently to revive the judgment by action before it is barred by prescription: Carter v. State, 22 So. Rep. 400.

Revival of
Judgment

Torts,

The Court of Civil Appeals of Texas holds that a father who does not permit his minor son to use a gun is not responsible in damages for the act of the son in carelessly Responsibility and purposely shooting at and injuring a comof Father for panion, while out hunting with an air-gun, without his father's knowledge: Ritter v. Thibodeaux, 41 S.

Acts of Child

W. Rep. 492.

The purchase of a toy air-gun by a father for his child is not an act of culpable negligence, since it is not obviously and intrinsically dangerous; and consequently the father is not

liable for the wrongful act of another boy, who obtains it without his knowledge or consent, and uses it so as to injure another: Chaddock v. Plummer, 88 Mich. 225, 1891; Harris v. Cameron, 81 Wis. 239, 1892.

Property
Rights,

The father of a child, who is its natural guardian, has such a right to its dead body that he may maintain an action against one to whom he entrusted the child for treatment, and who, without his consent, performed an Dead Bodies autopsy on the dead body: Burney v. Children's Hospital in Boston, (Supreme Judicial Court of Massachusetts,) 47 N. E. Rep. 401.

A widow may recover for the unlawful mutilation of her deceased husband's body by an unauthorized autopsy or dissection: Larson v. Chase, 47 Minn. 307, 1891; Foley v. Phelps, 1 App. Div. (N. Y.) 551, 1896; and a husband may recover for the unlawful dissection of the body of his wife: Anon., 3 Chic. L. News, 378, 1871. But in the absence of proof of fraudulent or malicious motive, neither a coroner, who has the power of ordering an autopsy, nor the physician who performs it by his order, can be held liable therefor: Young v. College of Physicians & Surgeons, 81 Md. 359, 1895.

Place of

A patron of a place of amusement, who has paid his admission fee, and has not by his conduct forfeited his right to remain, is not bound to leave on request of the Amusement, proprietors; if he refuses to leave, they have no Ejection right to eject him; he is entitled to resist ejection with all the force necessary to protect himself; and if they do eject him, he can recover damages: Cremore v. Huber, (Supreme Court of New York, Appellate Division, Second Department.) 45 N. Y. Suppl. 947.

Unfair

According to a recent decision by Coxe, Dist. J., in the Circuit Court for the Southern District of New York, "where the goods of a manufacturer have become popular Competition, not only because of their intrinsic worth, but also Advertising by reason of the ingenious, attractive and persistent manner in which they have been advertised, the good-will thus created is entitled to protection. The money invested in advertising is as much a part of the business as if invested in buildings, or machinery, and a rival in business has no more right to use the one than the other,—no more right to use the machinery by which the goods are placed on the market than the machinery which originally created them :" Hilson Co. v. Foster, 80 Fed. Rep. 896.

Ardemus Stewart.

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TERMINATION Of Office; Public Officer; AccEPTANCE OF AN INCOMPATIBLE OFFICE. The question of the termination of the authority of a public officer by reason of his acceptance of an incompatible office, has recently been passed upon by the Supreme Court of Michigan in the case of Attorney-General ex relatione Moreland v. Common Council of City of Detroit, 70 N. W. Rep. 450 (March 19, 1897). Pingree, mayor of Detroit, having been elected governor of Michigan, attempted to exercise the functions of both offices. The question as to his right to do so having come before the court, it was held that the offices of mayor of a city and governor of a State are incompatible, and cannot be occupied by one and the same person at the same time, and Pingree, having accepted the office of governor, the office of mayor thereby became vacant. This decision is in accordance with the common law rule on the subject, that when the occupant of one office accepts another incompatible with the first, he thereby vacates the first office, and his title thereto is ipso facto terminated without any further act on his part, and without any judicial or other proceedings. While the rule is very clear, the application of it has been far from uniform,

partly due to statutory provisions and partly due to different views of judges as to what constitutes incompatibility. Thus, in New York, a retired army officer may act as Aqueduct Commissioner: People v. Duane, 121 N. Y. 367, 1890; while in Texas he may not act as mayor of a city : State v. DeGress, 53 Texas, 387 (1880). In Indiana an officer of volunteers may not act as Auditor of the County: Mehringer v. State, 20 Ind. 103 (1863); while in Iowa he may act as District Attorney: Bryan v. Cattell, 15 Iowa, 550 (1864).

It is to be noted that the above rule applies to offices under the same sovereignty and that, therefore, the acceptance of an office existing under a State law, does not vacate an office existing under a national law: Foltz v. Kerlin, 105 Ind. 222 (1885); DeFurk v. Com., 129 P. S. 151 (1889). But if the incumbent elects to hold the latter he must surrender the former: People v. Leonard, 73 Cal. 230 (1887). The state courts will declare a state office vacant on the acceptance by the incumbent of a Federal office of the prohibited class: Dickson v. People, 17 Ill. 191 (1855); People v. Brooklyn, 77 N. Y, 503 (1879).

WILLS; RESTraints on AliENATION. In the case of Morse v. Blood, 71 N. W. 682, Minn. (June 8, 1897), the testator left his entire property to his wife, "on condition that in no case shall she give or bequeath one cent of said estate to any member of my family or any relation of her own." Though it is generally held that a condition in restraint of alienation to particular classes of persons is good, the court said that such a condition should not be allowed where it is so vexatious as to prevent any alienation for a limited time. The effect of such a condition as the above would be to tie up the real estate during the widow's life, for no purchaser could safely take it, when it might be forfeited at any time by the widow giving a drink or other trifling gift to any of the forbidden persons. And, moreover, if the estate was forfeited by her gift or devise, it would revert to the testator's heirs, who were the very persons he desired to exclude. The court therefore held this condition void as being inconsistent with the grant of a fee, and also as being inconsistent with itself. A provision in almost the same language, "That my widow shall not will to any of my blood kin or hers any of the estate," was held void, as inconsistent with the nature of the estate, in Barnard's Lessee v. Bailey, 2 Har. (Del.) 56 (1835), and in Ludlow v. Bunbury, 35 Beav. 36 (1865), a condition made by the wife that if (B.), his wife, or descendants, acquire any interest, the whole estate of the husband should cease, was held void.

The rule allowing partial restraints on alienation, is, it must be remembered, an exception to the general policy of the law and the principle of the above cases in establishing an exception to that rule, and returning to the rule of public policy, seems to be that such conditions should not be permitted where, though partial, they

are unreasonable, and have the effect of keeping the estate out of the market.

WILLS; REVOCATION BY SUBSEQUENT MARKIAGE. The Supreme Court of Wisconsin has recently decided, in Lyon v. Cole, 71 N. W. 362 (May 21, 1897), that under the statutes of Wisconsin, which give married women the absolute power of disposing of their property by will, the will of a single woman is not revoked by her subsequent marriage.

The common law rule was that the will of a man was revoked by subsequent marriage and birth of issue, but neither circumstance, standing alone, was sufficient to revoke: Christopher v. Christopher, Dick. 445 (1771); Doed. White v. Barford, 4 M. & S. 10 (1815). But the will of a woman was revoked by marriage alone : Forse v. Hembling, 4 Rep. 60 (1588); Holsien v. Llová, 2 Bro. Ch. 534 (1789). The reason for this difference was that, in the case of a man, only such a change in his circumstances as to alter the course of descent was held sufficient to constitute an implied revocation of his will; while, in the case of the woman, marriage, by destroying her right over her property, destroyed the ambulatory nature of her previous will. Therefore, the courts held that the will, being unable to retain one of its essential qualities, must be revoked by marriage. Where, however, the woman retains the right to devise during coverture, by ante-nuptial contract, as she has thereby the right to alter the previous will, she is so far a feme sole, and that will is not revoked by her marriage: Stewart v. Mulholland, 88 Ky. 40 (1888).

Following this idea, that the common law rule ceased when the reason for it ceased, the court, in the case under discussion, said that since a married woman is now, by statute, in Wisconsin, empowered to will as freely as if she were a man, the law in regard to the revocation of her will should be the same as it is in the case of a man. In other States, where marriage and birth of issue are still both necessary to revoke a man's will, they have, after the Married Women's acts, been held equally necessary to revoke a woman's will: Miller v. Phillips, 9 R. I. 137 (1868); Fellows v. Allen, 60 N. H. 439 (1881); Webb v. Jones, 36 N. J. Eq. 163 (1882); Neves v. Southworth, 55 Mich. 173 (1884); Emery, Appellant, 81 Me. 275 (1889); Roane v. Hollingshead, 76 Md. 369 (1892). In Re Tuller's Will, 79 Ill. 99 (1875), the court said that the reason of the rule of implied revocation was that the marriage and birth of issue, in England, and marriage alone here, change the course of descent, and that therefore it was generally held in this country that marriage alone, of a man or woman, was a revocation of a previous will, as husband and wife are here each other's heirs; but that where the marriage did not alter the course of descent, as in this case, where the devisees were the children of the first marriage, and therefore heirs, there was no revocation. The same principle was followed in Re Ward's Will, 70 Wis. 251 (1887),