For a discussion of the principles involved in these cases, see NOTES, p. 213.

EQUITY JURISDICTION WRIT OF NE EXEAT WHERE NO PECUNIARY CLAIM INVOLVED. On habeas corpus proceedings, a mother was awarded the custody of her minor child and ordered to allow the father to have access to the child at a specified place and at stated times. In disobedience of the decree she left the state, taking the child with her. Upon her return, the father applied for a writ of ne exeat against her, until she should purge herself of the contempt and should fully respond to any order which the court might make touching the custody of the infant. Held, that the writ should be issued. Palmer v. Palmer, 95 Atl. 241 (N. J.).

For a discussion of the case and the use of this writ, see NOTES, p. 206.

EQUITY LIMITATION OF ACTION EFFECT OF DELAY ON PLEDGOR'S RIGHT TO RECLAIM. The defendant was the pledgee of certain stock certificates which were transferred to his name. The pledgor became insolvent, and subsequently his assignee paid the debt, but did not reclaim the stock, which remained in the defendant's possession for twenty-eight years thereafter. Then the first assignee's successor brought a bill in equity to recover the shares. The defendant's demurrer to the bill was sustained. Held, that the decree be affirmed. Wehrle v. Mercantile National Bank, 221 Mass. 585.

On payment of the debt the defendant became trustee of the stock, for though his beneficial pledge interest was cut off he retained the legal title. Thomas v. Van Meter, 62 Ill. App. 309; Merrifield v. Baker, 91 Mass. 29. See JONES, PLEDGES, 2 ed. §§ 151-153, 558. Since the defendant never claimed to hold the certificates adversely to the pledgor's rights, there was, strictly speaking, no termination of the trusteeship. Haney v. Legg, 129 Ala. 619. See 2 PERRY, TRUSTS, 3 ed. §§ 863-865; 2 STORY, EQUITY JURISPRUDENCE, 13 ed. § 1520 a. But such a trusteeship, implied from the preexisting pledge relationship, contains no idea of permanency, for the substantial right of the beneficiary is that the trust should be ended by a transfer to him of the legal title. See 3 POMEROY, EQUITY JURISPRUDENCE, 2 ed. § 1030. It follows, therefore, that the cestui has an immediate equitable claim which he must assert within a reasonable time, whereas an express trust not repudiated by the trustee remains unaffected by the passage of time. Hendrickson v. Hendrickson, 42 N. J. Eq. 657. See Riddle v. Whitehill, 135 U. S. 621, 634. Where claims remain so long unasserted as in the principal case, equity, on the ground that the facts have become irremediably blurred, refuses to aid the tardy claimant. Gilmer v. Morris, 80 Ala. 78; Waterman v. Brown, 31 Pa. St. 161; Kare v. Burnham, 206 Pa. St. 330. See 2 STORY, EQUITY JURISPRUDENCE, 13 ed. § 1520 a. That time works havoc with facts in human minds is a vital consideration which outweighs the apparent injustice of the refusal in the principal case to order restoration of the shares held in trust.

EVIDENCE- CORPUS DELICTI - NECESSITY FOR DIRECT PROOF. In a trial of two prisoners for murder, the evidence consisted of that given by accomplices and, in respect to one of the accused, of a confession also. The body of the deceased, who had disappeared a year before the arrest of the accused, was unidentified, only a few small bones having been found. Held, that there was not proper evidence upon which to convict either of the accused. Rex v. Tshingwayo, 1915, South African L. J. 86.

The doctrine that the death in trials for homicide must be proven either by inspection of the body or by direct evidence of the killing, may be traced to expressions used by Sir Matthew Hale and Lord Stowell which were not intended to assert a general proposition. See 2 HALE, PLEAS OF THE CROWN, 290. Evans

v. Evans, 1 Hagg. Cons. 35, 105. See 3 WIGMORE, EVIDENCE, § 2081. However, it is still laid down as an arbitrary rule by many courts. Hinmarsh's Case, 2 Leach, 4 ed., 569; Regina v. Hopkins, 8 C. & P. 591; Ruloff v. People, 18 N. Y. 179. See STARKIE, EVIDENCE, 9 ed., 758 [862]. Though the rule is defended as a protection of the innocent prisoner, it is submitted that less rigid rules can secure adequate protection. Again, it is difficult to see what principle requires that the fact of crime be established by direct evidence when its agency may be established by circumstantial evidence. Thomas v. Commonwealth, 14 Ky. L. Rep. 288, 20 S. W. 226. Such an inflexible doctrine puts a premium on cleverness in crime, making a conviction impossible whenever the criminal succeeds in completely destroying the body of his victim unwitnessed. See United States v. Gilbert, 2 Sumn. 19, 27. Finally, a confession is direct evidence. True, it is often of no great weight when uncorroborated. See CHAMBERLAYNE, BEST, EVIDENCE, 88 563-577; HEALY, PATHOLOGICAL LYING, 23 and cases 20, 23, 25. If made in court, however, it will alone support a conviction. See I GREENLEAF, EVIDENCE, § 216. It would seem, therefore, that an extrajudicial confession, when corroborated, should be able to support a conviction without further proof of the corpus delicti. See State v. Lamb, 28 Mo. 218, 230; 19 HARV. L. REV. 469.

EVIDENCE

DOCUMENTS FAILURE TO PROVE LOSS OF PRIMARY EVIDENCE — NEGLIGENT LOSS OF ORIGINALS. The defendant sought to introduce into evidence a copy of a written contract, the original of which he claimed had been mislaid and was therefore unavailable despite diligent search. The trial judge excluded the copy. Held, that the exclusion was proper on the ground that the original was negligently lost. Missouri, Oklahoma, etc. Co. v. West, 151 Pac. 212 (Okl.).

Early cases and writers on evidence believed that the necessity of producing originals to prove documents as such was but an aspect of the general maxim which they regarded as one of the fundamental rules of evidence, that the best evidence procurable in the nature of the case should be presented. See THAYER, PRELIM. TREATISE ON EVIDENCE, 484-497. With this conception they readily decided that the profferer's negligence in rendering a document unavailable could not be made an excuse for violating a maxim supposed to be at the root of the law of evidence. See Thomas v. Thomas, 2 La. 166, 168. See GILBERT, EVIDENCE, 7 ed., 84; BULLER, NISI PRIUS, 252; 3 BL. COMM., 368; SWIFT, EVIDENCE, 31. In reality, however, the best evidence rule is an outgrowth of the ancient mode of trial by production of documents, which later developed into a rule of oral pleading requiring proffers of writings declared on, and finally emerged as a narrow rule of evidence, that was extended to all written instruments because of its excellent sense. See THAYER, PRELIM. TREATISE ON EVIDENCE, 484-507. Thus the history and nature of the doctrine reveal no basis for the early view that documents cannot be proved as such if negligently lost by the profferer. Rodgers v. Crook, 97 Ala. 722. Exclusion of secondary evidence should be confined to those cases where originals were rendered unavailable purposely to avoid producing them. Riggs v. Tayloe, 9 Wheat. (U. S.) 483. See Blake v. Fash, 44 Ill. 302; Bagley v. Eaton, 10 Cal. 126, 149; Breen v. Richardson, 6 Colo. 605, 607.

EVIDENCE - DOCUMENTS SECONDARY EVIDENCE: NOTICE TO ACCUSED TO PRODUCE PRIVILEGED DOCUMENTS. In a trial upon a charge of sending obscene literature through the mails, the district attorney was allowed to read before the jury a notice to the defendant to produce certain "decoy letters" sent to the defendant and also a letter written by him in reply thereto, all of

which were then in the defendant's possession. Held, that this is error, though not prejudicial. Hanish v. United States (not yet reported).

For a full discussion of the principle involved, see NOTES, p. 221.

EVIDENCE - OPINION EVIDENCE - DOES THE OPINION RULE APPLY TO DYING DECLARATIONS. In a trial for voluntary manslaughter, a dying declaration of the deceased, to the effect that the defendant had killed him "on purpose," was admitted over the defendant's objection that it was opinion evidence. Held, that the admission was proper. Pippin v. Commonwealth, 56 S. E. 152 (Va.).

It is a general rule that only such testimony as would have been admissible from the deceased if he were a witness is admissible as his dying declaration. Whitley v. State, 38 Ga. 50, 70. This would generally exclude opinions. See I GREENLEAF, EVIDENCE, 16 ed., § 159. Accordingly, the opinion of the deceased as to the defendant's fault in killing him is excluded in many states. Berry v. State, 63 Ark. 382, 38 S. W. 1038; Kearney v. State, 101 Ga. 803, 29 S. E. 127; State v. Sale, 119 Ia. 1, 92 N. W. 680. Contra, Gerald v. State, 128 Ala. 6, 29 So. 614; Boyle v. State, 105 Ind. 469, 5 N. E. 203. There seems to be a general feeling in all the cases that opinion as such should be excluded; many courts which admit accusations of the deceased as dying declarations construing the accusation as a method of indicating a complex set of facts. Commonwealth v. Mathews, 89 Ky. 287, 12 S. W. 333. It has been argued that the reason for the opinion rule, which is to leave the drawing of inferences to the jury when the facts from which the witness drew his opinion can be detailed to them, does not apply to dying declarations, where it is impossible to put the jury in possession of the facts. See 2 WIGMORE, EVIDENCE, § 1447. But as the opinion rule is also based largely on the fear that opinions of witnesses will unduly prejudice the jury, an objection to which accusations like those in the principal case are especially open, it seems wise to exclude such declarations whenever, in the opinion of the trial judge, the danger of prejudice outweighs their probative value. Abuse of the trial judge's discretion should then be the only ground for reversal.

EVIDENCE

RES GESTAE - WHETHER STATEMENTS CHARACTERIZING ADVERSE POSSESSION ARE HEARSAY. - On the issue of whether X.'s possession of certain land was adverse, testimony that X. had said, while in possession, "that she made an exchange . . . in which she got the land now in dispute,' was held inadmissible. Oahu Ry. Co. v. Kaili, 22 Hawaii Adv. 673.

The court subscribed to the accepted doctrine that the declarations of a person in possession of land as to the nature of his claim are part of the res gestae. McConnell v. Hannah, 96 Ind. 102. Nevertheless it excluded the testimony on the ground that it was merely narrative of a past transaction. Wilkinson v. Bottoms, 56 So. 948 (Ala.); Whitaker v. Whitaker, 157 Mo. 342, 354, 58 S. W. 5, 8. But the use of the term "narrative" as a limitation to the res gestae doctrine means non-contemporaneous with the act characterized." Cf. Rockwell v. Taylor, 41 Conn. 55, 59-60; Carter v. Buchannon, 3 Ga. 513, 517-18; Commonwealth v. Hackett, 2 Allen (Mass.) 136, 139; Sorenson v. Dundas, 42 Wis. 642, 643. See I GREENLEAF, EVIDENCE, § 110; 3 WIGMORE, EVIDENCE, § 1756 (c). In the principal case, as the words in question characterize a contemporaneous possession, their exclusion indicates a confusion of the popular with the technical import of the word "narrative." But a correct analysis shows the problem not to be one of res gestae at all. The fact to be proven is the mental attitude of the occupant of the land. As circumstantial evidence of this, evidence whose value lies rather in the inference from the fact of statement than in the truth of what is asserted, the declarations are properly

admitted without reference to hearsay rules. See THAYER, LEGAL ESSAYS, pp. 291 et seq.; 3 WIGMORE, EVIDENCE, §§ 1715, 1778-80; 28 HARV. L. REV. 299. The form of statement, therefore, whether narrative of a past event or explanatory of a present occurrence, is immaterial.

HOMESTEAD EXEMPTION REVIVAL OF JUDGMENT LIEN ON SALE OF HOMESTEAD. The plaintiff had recovered a judgment against_one_who owned only a homestead constitutionally exempt from forced sale. Later the homestead was alienated and the plaintiff now attempts to enforce his judgment lien against the grantee. Held, that the property passed to the grantee free from any lien. Gray v. Deal, 151 Pac. 205 (Okl.).

There are two views as to the operation of a judgment lien on property exempt by statute from forced sale. In a few states it is held, as in the principal case, that the provision negatives the possibility of even a dormant lien so that the homestead may be conveyed free and clear. Morris v. Ward, 5 Kan. 239; Green v. Marks, 25 Ill. 221. This result is sometimes reached by a construction based on other statutes indicating this to be the legislative intent. Lamb v. Shays, 14 Ia. 567. The majority view, however, is that the lien attaches, though it is held in abeyance by the exemption statute, which grants only a personal right of exemption to the owner of the homestead. Thus the lien becomes active when the land is alienated. Allen v. Cook, 26 Barb. (N. Y.) 374. See Norris v. Kidd, 28 Ark. 485. The Oklahoma constitution provides that the homestead of the family shall be exempt from forced sale for the payment of debts. WILLIAMS, CONST., § 303. But a statute declares that judgments of courts of record shall be liens on the real estate of the debtor. GEN. STAT. OKL., § 5192. A strict construction of the exemption would not prohibit the attachment of the lien but only the final process or forced sale. Whether a court will make such a construction, or follow the rule of the principal case, depends, in the absence of any evidence of legislative intent, on the general attitude toward the policy of the exemption acts in the particular jurisdiction. Morris v. Ward, supra. Cf. Norris v. Kidd, supra.

INSURANCE - RIGHT OF BENEFICIARY WHETHER RESERVED RIGHT TO CHANGE BENEFICIARIES GIVES INSURED RIGHT TO SURRENDER POLICY WITHOUT CONSENT OF BENEFICIARY. A man in taking out a policy of life insurance reserved the right to change beneficiaries. Later, without the consent of the beneficiary, the insured surrendered the policy to the company, receiving consideration therefor. After the death of the insured the beneficiary sues the company on the policy. Held, that she may recover. Roberts v. N. W. Nat'l Life Ins. Co., 85 S. E. 1043 (Ga.).

It is well settled that the beneficiary of an ordinary life insurance policy has a vested right to the amount to be paid. Mutual Life Ins. Co. v. Allen, 212 Ill. 134, 72 N. E. 200; Washington Life Ins. Co. v. Berwald, 97 Tex. 111, 76 S. W. 442. See 13 HARV. L. REV. 682. The same is true although the policy provides that on a certain condition another is to become beneficiary. In re Peckham, 29 R. I. 250, 69 Atl. 1002; Lockwood v. Mich. Mutual Life Ins. Co., 108 Mich. 334, 66 N. W. 229. In these cases the insured has put the policy beyond his power of control. Even where the insured has reserved control through the right to change beneficiaries, some courts, as that in the principal case, hold that the right of the beneficiary is vested. Holder v. Prudential Ins. Co., 77 S. C. 299, 57 S. E. 853; Sullivan v. Maroney, 76 N. J. Eq. 104, 73 Atl. 842. As the reservation of the right to change of beneficiaries certainly cannot be construed to include a right of the insured to surrender the policy, if the interest of the beneficiary is vested, it cannot be destroyed by an unconsented surrender. Holder v. Prudential Ins. Co., supra. However, a vested right in the bene

ficiary can exist only if the parties to the insurance contract intend that it should. As an insurer, by reserving to himself the right to determine the beneficiary, clearly shows an intent that no right shall vest in any particular person, the right of the beneficiary is not a vested one, and therefore the insured should be allowed to surrender the policy without the beneficiary's consent. Equitable Life Assurance Soc. v. Stough, 45 Ind. App. 411, 89 N. E. 612; Hick v. North Western, etc. Co., 147 N. W. 883 (Ia.).

LANDLORD AND TENANT-REPAIR AND USE OF PREMISES LANDLORD'S LIABILITY TO CUSTOMER OR GUEST OF TENANT FOR NEGLIGENT REPAIRS. A shopkeeper requested his landlord to have an iron post erected in his shop, and in consideration of his rent not being raised, agreed to pay for the expense of the work. The work was negligently done by the landlord, and a customer was injured by the falling of the post. He now sues the landlord. Held, that he may recover. Feeley v. Doyle, 109 N. E. 902 (Mass.).

A landlord negligently repaired a hand rail, which at the request of the tenant he had gratuitously promised to repair. A social guest of the tenant was injured because of the defective rail. He now sues the landlord. Held, that he may not recover. Thomas v. Lane, 221 Mass. 447, 109 N. E. 363.

When a landlord has made repairs on the premises, it does not affect his liability to the tenant whether or not his prior agreement to make them was for a consideration. Gill v. Middleton, 105 Mass. 477; Wertheimer v. Saunders, 95 Wis. 573, 70 N. W. 824. Since neither a customer nor a social guest of the tenant is a party to the agreement, it is submitted that a fortiori the character of the agreement has no effect on the rights of either against the landlord. A customer is a business guest to whom the occupant is liable for injuries caused by defects in premises due to his negligence. League v. Stradley, 68 S. C. 515, 47 S. E. 975; Kean v. Schoening, 103 Mo. App. 77, 77 S. W. 335. Therefore where the defects are due to the landlord's negligence, the landlord is liable to the guest, as well if we consider his duty to be that of an occupant as if we consider it to be the general duty of care owed to a stranger. But to a social guest the occupant of the premises seems to owe only the limited duty which he owes to a licensee. Southcote v. Stanley, 1 H. & N. 247. See Indermaur v. Dames, L. R. 1 C. P. 274, 287; Beard v. Klusmeier, 158 Ky. 153, 156, 164 S. W. 319, 321. See BIGELOW, TORTS, 7 ed., § 741. Contra, Barman v. Spencer, 49 N. E. 9 (Ind.). Some dicta hold that for repairs made on the premises the landlord owes to the licensee only the duty that the occupant owes. Barman v. Spencer, supra. See Malone v. Laskey, [1907] 2 K. B. 141, 154. However, on the better view, a stranger who contracts with the tenant for repairs must use ordinary care toward a guest of the tenant. See 28 HARV. L. REV. 818. It is submitted that there is no reason why the landlord should not owe this same duty of care, and why he should not be liable in the second principal case.

I

PRESUMPTION

OF

LIMITATION OF ACTIONS FRAUD - DISCOVERY KNOWLEDGE OF DOCUMENT FROM READING. - The defendant, who was the plaintiff's confidential adviser, sold her a piece of land to which he had no title, and gave her a quitclaim instead of a warranty deed. The plaintiff read over the document, but failed to comprehend its character. On discovering the error seven years later she brings suit. The state statute of limitations bars actions for fraud not brought within two years after the discovery of the fraud. 1910 OKL. R. L., § 4657, c. 3. Held, that the plaintiff cannot recover because reading over the document is conclusive discovery of its contents. Jones v. Woodward, 151 Pac. 586 (Okl.).

A plaintiff in equity is not guilty of laches when he delays suit in reasonable ignorance of the fraud. Phalen v. Clark, 19 Conn. 421. See Hovenden v.