cipal case is correct. Moreover, the Supreme Court in In re Pennsylvania Co., 137 U. S., 451 (1890), decided that the $2,000 minimum required to give original jurisdiction to the Circuit Courts applied to cases of removal for prejudice; and it seems logically impossible to construe a part of the section granting original jurisdiction in connection with the prejudice clause and not the whole. Cf. Jackson v. Pearson, supra.

DIVORCE EFFECT OF FOREIGN DECREE-ESTOPPEL.-Whether one who has procured a judgment for divorce may, as plaintiff, insist upon rights whose existence depends upon the continuance of the marital relation, in a state where the validity of his decree is not recognized, was the question raised in two recent cases before the New York Appellate Division. In each case the wife, compelled to leave her husband by reason of his abusive treatment, had gone to another state and there procured a divorce by constructive service of process; such decree being without force in New York, under the ruling in People v. Baker, 76 N. Y., 78. In one of the cases, Starbuck v. Starbuck, 64 App. Div., the plaintiff sued for dower and the Court in the Second Department declared that the fact that she had obtained an ex parte divorce in Massachusetts did not preclude her from asserting her claim as widow. In the other case, In re Swales, 60 App. Div., 599, which was tried in the Fourth Department, an opposite conclusion was reached and the petition of the wife for letters of administration upon the estate of her deceased husband was dismissed, the Court holding that, having sought and obtained a judgment for divorce in Illinois, she could not afterwards enforce a claim against her husband's estate based upon a denial of the jurisdiction of the Court whose aid she had herself invoked. Apparently the Court of Appeals has never passed upon the merits of this rule. The case of In re Kimball, 155 N. Y., 62, is quite similar on its facts to these two cases but the question is not touched upon in the decision. In the reports of the lower courts there are decisions both ways. The principle involved has found favor in a number of our states; as the Court in the Swales case suggests, it has many of the elements of estoppel; it certainly seems reasonable and likely to make for justice. Should the court of last resort accept this doctrine, the effect on our state divorce law will be material.

TORTS-PUBLIC CHARITY-HOSPITAL'S LIABILITY TO PAtient. What is the liability of a public hospital to a patient injured by the negligence of a nurse, in whose selection the hospital authorities have used due care? And, if there be none, on what theory of law is this immunity to be supported? The case of Powers v. Massachusetts Homœopathic Hospital (see RECENT DECISIONS, p. 495), holds that there is no liability, even though the patient make small payments for his treatment. The ground of the decision is that the rule respondeat superior has no application to such a case.

It is well settled that charitable institutions are not liable for the negligence of their carefully chosen servants. McDonald v. Hospital, 120 Mass., 432 (1876); Boyd v. Ins. Co., 120 Pa. St., 624 (1888); Haas v. Missionary Society, 6 N. Y. Misc., 281 (1893) Downes v. Harper Hospital, 101 Mich., 555 (1894). Nor do the small payments made by the plaintiff alter the case. There was no The amount was based on his ability to pay, not on the cost of the treatment given. He partook of the charity and made a small contribution thereto. McDonald v. Hospital, supra; Downes

contract.

v. Hospital, supra.

Despite this agreement in the result, there is conflict in the grounds of decision. The authorities above cited held that the funds of a hospital are trust funds, inviolate, and not to be diminished by any such casualties. The principal case, on the other hand, departs from this doctrine and merely holds that the maxim respondeat superior does not apply under such facts. Of these rules the latter is preferable. If the funds of such institution be without the reach of damages for one tortious act, they should be equally so for all tortious acts, granted that such acts are not ultra vires. If a charitable corporation is to escape liability for the negligent acts of its authorized agents, because the funds were not given for the payment of damages, so should a like corporation escape liability for injury caused by the fall of a decayed wall, or by a defective sidewalk, or by a breach of contract. But the cases hold otherwise. Rector, etc., of Ascension Church v. Buckart, 3 Hill, 193 (N. Y., 1842); Blaechinska v. Howard Mission, 56 Hun, 332 (N. Y., 1890).

Therefore, it seems that the reason given for the holding in the principal case is better; viz., the inapplicableness of the rule respondeat superior to such facts. The rule has its foundation in the exigencies of society, in public policy and convenience; Pollock on Torts, 5th Edition, p. 72; Story on Agency, 9th Edition, § 452; these require that a man in the management of his own affairs shall so conduct himself as not to injure his neighbor, and that he shall not escape this obligation by turning his business over to a servant and pleading that the latter's negligent acts were unauthorized. Farwell v. Boston, etc., Ry. Co., 4 Metc., 49 (Mass., 1842). On the contrary, where the act is for the master's benefit, and, in the course of the servant's employment, "it will be intended that the servant had authority, it being for the master's benefit." Tuberville v. Stampe, 1 Ld. Raymond, 264 (end of 17th century). To the same effect are Hall v. Smith, 2 Bing., 156 (1824); Ellis v. Sheffield Gas Consumers, 2 E. & B. (1853); Barwick v. English Joint Stock Bank, L. R., 2 Exch., 264 (1867). The report of the latter case is misquoted in the principal case, the portion of the opinion quoted reading in the original, "the master is answerable for every such wrong of the servant as is committed in the course of the employment, for the master's benefit, though no express command or privity" (not "end or profit," as it is quoted), "of the master be proved." See page 265.

But while public policy requires that a man should himself bear

the burdens of that from which he expects to derive a benefit, so also does that same public policy require that those institutions whose sole object is the benefit, not of themselves, but of their neighbors, be encouraged in their work by freedom from the burdens of a rule within whose reason they do not come. As the Court said in Hall v. Smith, supra, at page 159, "if the rule respondeat superior were applied to such Commissioners [unpaid Road Commissioners], who would be hardy enough to undertake any of those various offices by which much valuable, yet unpaid, service is rendered to the country? * * Such Commissioners will act no more if they are to make amends from their own fortunes for the conduct of such as must be employed by them." The reasoning is as forceable in the case of a public charity.

It is to be noted that the case of Glavin v. R. I. Hospital, 12 R. I., 411 (1879), is contra the general rule; but that Ward v. St. Vincent's Hospital, 39 App. Div., 624 (N. Y., 1899), is decided on the ground of an express contract and is not in point.

RECENT DECISIONS.

AGENCY-CREATION OF THE RELATION BY ESTOPPEL-LIABILITY IN TORT. Where the defendant advertised itself as carrying on the practice of dentistry at its department store, and the plaintiff, owing to the negligent work of the dentist was injured, held, the defendant was liable in damages, being estopped from denying the agency of the dentist, who in fact carried on the practice on his own account. Hannon v. Siegel-Cooper Co., 60 N. E. 597 (N. Y., June, 1901).

This case is a logical outcome of the doctrine of estoppel as applied in cases of agency involving a contractual relation; as where A, having held B out as his agent, and B, having contracted with C, A is not allowed to deny that B is his agent in an action on the contract. Tier v. Lampson, 35 Vt. 197 (1862); Thurber v. Anderson, 88 Ill. 167 (1878). This doctrine holds in cases where the alleged principal is a corporation. Kiley v. Forsee, 57 Mo. 390 (1874); Ang. & Ames on Corporations, § 284. Cases of a similar nature can rarely arise in the law of torts, as one of the elements of estoppel, an act done by the plaintiff in reliance on defendant's representation, is wanting. But in the principal case, plaintiff. in employing the dentist, relied on the character and business standing of the ostensible principal, thus furnishing the grounds for holding defendant liable.

There is no defense in the fact that the act leading to the injury was beyond the corporate authority. See Bissel v. R. Ř. Co., 22 N. Y. 258 (1860), particularly the opinion of SELDEN, J., at pp. 305 and 306.

BILLS AND NOTES-CERTIFICATES OF DEPOSIT--GIFTS WITHOUT DELIVERY. The plaintiff sued on several certificates of deposit alleged to have been given him by a relative. There had been an assignment in writing, not under seal, but the donor had never delivered the instruments to the plaintiff. Held, the plaintiff was entitled to the certificates and might recover. Cowen v. National Bank, 63 S. W. 532 (Texas, June, 1901).

This decision illustrates the great change which has taken place in the law relating to gifts of choses in action. In England the donee of a bond to whom it has been delivered has been held to have no claim against the obligor. Edwards v. . Jones, 1 M. & C. 226 (1836). This doctrine seems sound on strict common law principles. By an anomaly, recovery is allowed in gifts causa mortis. Snellgrove v. Bailey, 3 Atk. 214 (1744). In the United States the donee is held to have an irrevocable right in all cases where there has been a delivery; Grover v. Grover, 24 Pick. 261 (Mass., 1837); and a deed of gift without delivery is quite as effectual. Walker v. Crews, 73 Ala. 412 (1882). In the principal case the decision depends upon a statute providing that the omission or addition of a seal shall not affect the force of an instrument in writing. Texas Rev. St., § 4862.

CARRIERS LIMITATION OF LIABILITY-SPECIAL CONTRACT. A shipper accepted from defendant railway company without objection a bill of lading containing limitations on common law liability. Held, as there was but one contract and one rate open and offered to the shipper, the limitation on liability was without consideration and void. Illinois Central Ry. Co. v. Lancashire Ins. Co., 30 So. 43 (Miss., April, 1901).

The common carrier may limit his liability by special agreement; N. Į. S. Nav. Co. v. Mer. Bank, 6 How. 244 (U. S. 1848); and there is no wellfounded doubt but that the tender by the carrier, and acceptance by the shipper, of a bill of lading creates a contract according to its terms without inquiring whether it has been expressly assented to by the shipper, if there has been no fraud or imposition. Grace v. Adams, 100 Mass. (1868).

Nor is there any duty on the carrier to offer to carry with his common law liability. If it were the intention of the shipper to hold the carrier as insurer, he should have said so, and have either declined to employ him, or have sued him for his refusal, after tendering a reasonable sum for his services and risk." Hutchinson on Carriers, Chicago, 1891, § 240; McMillan v. Ry. Co., 16 Mich. 80 (1837).

Though this contract may be attacked for want of consideration, by showing that maximum rates were charged for limited liability or otherwise, Bissel v. N. Y. C. Ry. Co., 25 N. Y. 449 (1862), yet there is a presumption that the contract is for the mutual benefit of the parties and good. Hutchinson on Carriers, § 225; McMillan v. Ry. Co., supra; Huntington v. Dinsmore, 4 Hun 66 (N. Y., 1875).

CONFLICT OF LAWS-PRESUMPTION OF FOREIGN LAW. Plaintiff, injured by a fellow-servant in Illinois, sued in Wisconsin, where statute permitted recovery. Held, in the absence of proof to the contrary, the existence of a like statute in Illinois would be presumed. McCarthy v. Whitcomb, 85 N. W. 707 (Wis., April, 1901).

44

In all cases the foreign law will be administered as it is proved, or as without proof it may reasonably be presumed, to be. So without proof "courts" of one state will presume that the general principles of the common law, which we consider to be consonant with wisdom and justice, prevail" in another state. I Greenleaf on Evidence, 14th Edition, 43. n. 1; Seaward v. Columbia Navigation Co., 84 N. Y. 48 (1881).

But no such presumption exists as to the positive statute law of the state. There is generally no probability in point of fact, and there is never any presumption of law, that other states or countries have established the same arbitrary rule, which the domestic legislature has seen fit to enact." Whitford v. Panama Ry. Co., 23 N. Y. 465 (1861), per DENIO, J.; McDonald v. Mallory, 77 N. Y. 574 (1879); Murphy v. Collins, 121 Mass. 6 (1877); Hall v. Augustine, 23 Wis. 383 (1868). In the latter case the same court refused to presume the existence in another state of the Wisconsin statute against usury, on the ground of its penal character. Yet the presumption in the principal case is hardly less violent than would have been that refused in 1868.

CONTRACTS-CHARITABLE SUBSCRIPTIONS CONSIDERATION -PAROL EVIDENCE. "In consideration of founding a college" defendant gave the plaintiff a promissory note for $500. In an action on the note, wherein the defendant pleaded want of consideration, held, between the immediate parties to a note, as in this case, parol evidence may be given of the consideration; and, since this evidence showed that the plaintiff had suffered a detriment at the request and in reliance on the promise of the defendant, the note was valid. Keuka College v. Ray, 60 N. E. 325 (N. Y., May, 1901).

Although this case may be regarded as showing a readiness on the part of the New York courts to find a consideration in such cases when possible, it nevertheless adheres to the doctrine of Presbyterian Church v. Cooper, 112 N. Y. 517 (1889), to the effect that so-called subscription contracts are void. For a recent illustration of the contrary doctrine, of which Sherwin v. Fletcher, 168 Mass. 413 (1897), is the leading case, see First Universalist Church v. Pungs, 86 N. W. 235 (Mich., May, 1901).

DAMAGES--MENTAL SUFFERING. The plaintiff sued for damages for wilful assault. Because of a defect in the bill of particulars he was precluded from proving physical injury resulting directly from the assault. Evidence was offered as to sudden terror and illness caused thereby, but this the trial Court excluded, dismissing the complaint. Held, the exclusion was erroneous, damages for such suffering being recoverable when caused by willful tort. Williams v. Underhill, 63 App. Div. 224 (N. Y., July, 1901). SEE NOTES, p. 483.