Krause v. Busacker, 105 Wis. 350, 81 N. W. 406. But even if the rule be adopted, subsequent cases have made it clear that it does not affect the wellsettled principles that conscious misrepresentation is not necessary to an implied warranty of an agent's authority, to a warranty, to an estoppel, or in cases where a relational duty to know the truth exists between the parties. Starkey v. Bank of England, [1903] A. C. 114. See Low v. Bouverie, [1891] 3 Ch. 82, 101; De la Bere v. Pearson, Ltd., [1908] 1 K. B. 280. In accord with the instant case, therefore, attorneys may be held for damages sustained by their clients by reason of negligent advice. Byrnes v. Palmer, 18 N. Y. App. Div. 1, 45 N. Y. Supp. 479; Jamison v. Weaver, 81 Ia. 212, 46 N. W. 996. Cf. Purves v. Landell, 12 Cl. & F. 91. In view of the benefit that accrued to the attorney from the misrepresentation, recovery may also be had upon the principle that a fiduciary will not be allowed to profit by the breach of his obligation, however innocent he may have been of conscious falsification. Buckley v. Wilford, 2 Cl. & F. 102; Gibbons v. Hoag, 95 Ill. 45; Hoopes v. Burnett, 26 Miss. 428.

NEW TRIAL-GROUNDS FOR GRANTING NEW TRIAL - LIMITATION TO ISSUE OF PLAINTIFF'S CAPACITY. — An administratrix brought suit without alleging or proving her appointment and qualification. This defect was considered immaterial and not taken advantage of, but after verdict and judgment for plaintiff, pending appeal, a decision showed that this defect was demurrable. There was no other error in the proceedings to justify a new trial. Held, that a new trial will be granted, but limited to the issue made on the omitted averment. Moss v. Campbell's Creek R. Co., 83 S. E. 721 (W. Va.).

From the earliest times there has been a notion that the issues of a case after verdict were entirely inseparable and that a new trial must involve a reopening of the whole case. Bond v. Spark, 12 Mod. 275. See contra, King v. Mawbey, 6 T. R. 619, 638. A new trial, however, has never been regarded as a matter of right, but rather as a method of securing justice and correcting errors. Hutchinson v. Piper, 4 Taunt. 555. Consequently, if as a matter of fact the situation is such that the error is confined to a particular portion of the case and those issues are distinct and can be severed from the rest, the ends of justice will be better served by preserving the good and discarding only what is erroneous. Lisbon v. Lyman, 49 N. H. 553, 582. This result has been reached in cases where the error was solely in regard to damages. Boyd v. Brown, 17 Pick. (Mass.) 453, 461. But cf. Cerny v. Paxton & Gallagher Co., 83 Neb. 88, 119 N. W. 14. See also 22 HARV. L. REV. 540. A similar procedure has been followed where the only error was on the issue of the plaintiff's capacity, as in the principal case. Robbins v. Townsend, 20 Pick. (Mass.) 345. Whether or not in a given case a partial retrial will be proper must depend largely on its peculiar facts and on the discretion of the court as to the balance between public convenience and justice to the parties. Hall v. Hall, 131 N. C. 185, 42 S. E. 562. In some states the matter is covered by statute. See Smith v. Whittlesey, 79 Conn. 189, 63 Atl. 1085.

PUBLIC SERVICE COMPANIES

REGULATION OF PUBLIC SERVICE COMPANIES - VALUATION FOR RATE PURPOSES. A public service company had a nonexclusive revocable franchise. The Public Utility Commissioners ordered that no value be assigned to this franchise beyond the actual cost of procuring it when they computed the "present value" of the company's property, as a preliminary to regulating its rates. The Supreme Court of the state upheld this order. 84 N. J. L. 463. On appeal to the Court of Errors and Appeals, held, that the order be reversed. Public Service Gas Co. v. Board of Public Utility Commissioners, 92 Atl. 606 (N. J.).

See NOTES, p. 501, on the question of valuing franchises for rate-making and other purposes.

RAILROADS

- REGULATION OF RATES STATUTORY PENALTY FOR VIOLATION OF STATE COMMISSION'S ORDER. - The Georgia Railroad Commission ordered the defendant railroad to cease demanding prepayment of freight from one connecting carrier and not from another, in order to avoid discrimination in favor of the longer route in violation of a state statute. The defendant took no steps to contest the order, and after two months the state brought suit for the penalty provided by the statute for violating the orders of the commission. Held, that the railroad may be held liable. Wadley Southern R. Co. v. Georgia, 235 U. S. 651.

The commission's order was found reasonable by the state supreme court. Wadley Southern R. Co. v. Georgia, 137 Ga. 497, 73 S. E. 741. In view of the discretion vested in the commission, this decision is unimpeachable, although on somewhat similar facts other courts have found that there was no discrimination. Gamble-Robinson Commission Co. v. Chicago & N. W. R. Co., 168 Fed. 161. See 27 HARV. L. REV. 754. The question before the court in the principal case, therefore, was whether the order violated the Fourteenth Amendment. Such administrative orders are legislative in nature, though founded on judicial inquiry, and the parties affected are clearly entitled to review by the courts. Prentis v. Atlantic Coast Line Co., 211 U. S. 210; Louisville & N. R. Co. v. Garrett, 231 U. S. 313. Accordingly, statutes which provide penalties so enormous as to deter litigating the validity of the rates imposed, have been held invalid as denying the equal protection of the laws and as depriving the carrier of property without due process of law. Ex parte Young, 209 U. S. 123; Willcox v. Consolidated Gas Co., 212 U. S. 19, 53. The courts have reasoned that the carrier would rather obey an invalid order than risk incurring the tremendous penalty which might be imposed after long litigation. Missouri P. R. Co. v. Tucker, 230 U. S. 340, 349. See Ex parte Wood, 155 Fed. 190, 198. Where the statute expressly provides, however, for a judicial determination of validity, the present tendency is to construe the statute as imposing no penalty except for violations subsequent to such determination. Washington v. Oregon R. & Nav. Co., 68 Wash. 160, 167, 123 Pac. 3, 6. This result has also been reached even where there was no express provision. See Coal Co. v. Conley, 67 W. Va. 129, 159, 67 S. E. 613, 626. If, however, as in the present case, the railroad fails to exercise seasonably its right to judicial review, and the rate or order is regarded as valid, the penalty may then be imposed for violations from the outset.

SELF-DEFENSE DUTY TO RETREAT - ATTACK BY ANOTHER INHABITANT IN ONE'S OWN HOME. The defendant, being attacked by his son in the house where both resided, shot and killed his assailant without attempting to escape. Held, that the defendant is excused. People v. Tomlins, 107 N. E. 496 (N. Y.).

By the weight of authority, a man who is attacked must "retreat to the wall," if he can do so with safety, before killing his assailant. Commonwealth v. Drum, 58 Pa. St. 9; Patterson v. State, 146 Ala. 39, 41 So. 157. Cf. Erwin v. State, 29 Oh. St. 186; Runyan v. State, 57 Ind. 8o. See 16 HARV. L. REV. 567. But one who is attacked in his own dwelling, or on his premises adjacent thereto, need not seek safety in flight, since a man's home is his "castle," and he should not be compelled to leave its shelter. State v. Bissonnette, 83 Conn. 261, 76 Atl. 288; State v. Rutledge, 135 Ia. 581, 113 N. W. 461. He need not even retreat to another part of the house. Brinkley v. State, 89 Ala. 34, 8 So. 22. It would seem wholly immaterial, furthermore, that the assailant lived under the same roof, and accordingly the rule has been applied to attacks by a joint tenant, or by a husband or wife. Jones v. State, 76 Ala. 8; Hutcherson v. State, 170 Ala. 29, 54 So. 119; Watts v. State, 177 Ala. 24, 59 So. 270. Guests are accorded this same privilege of resistance. Jacobs v. State, 146 Ala. 163, 42

So. 70. Boarders, on the other hand, must retreat to their own rooms, at least when attacked by another inhabitant of the house. People v. Sullivan, 7 N. Y. 396; State v. Dyer, 147 Ia. 217, 124 N. W. 629. In opposition, however, to the whole doctrine exempting one attacked in the dwelling-house from the duty to retreat, it may be argued that when the assailant has entered the castle," it has ceased to be protection for the owner, and that there is accordingly no longer reason why he should not flee to avoid the necessity of killing. See MAY, CRIMINAL LAW, 2 ed., § 67.

66

RIALMEN.

SURETYSHIP SURETY'S DEFENSES: MISCELLANEOUS EFFECT OF ASSIGNMENT OF BUILDING CONTRACT BY CONTRACTOR ON RIGHTS OF MATEThe defendant company was surety on the bond of a contractor for the faithful performance of a contract with the United States for the erection of a naval station, and for the prompt payment of all persons supplying "labor and materials in the prosecution of the work." The contractor, being unable to complete the work, transferred his business, without the knowledge of the United States or the defendant, to a new corporation of which he was manager. The materialmen continued to furnish materials to this corporation with knowledge of the assignment, and on the bankruptcy of the contractor and the new corporation, seek to hold the surety company on the bond. Held, that they may recover. The John Davis Co. v. Illinois Surety Co., 47 Chic. Leg. News 177 (C. C. A., Seventh Circ.).

Sureties on the bonds of contractors for the prompt payment of all persons furnishing labor and materials for the work are generally held directly liable to materialmen. Abbott v. Morrissette, 46 Minn. 10, 48 N. W. 416. Such a bond is construed as essentially a substitute for a mechanics' lien, and extends to materials furnished to a sub-contractor or assignee. Hill v. American Surety Co., 200 U. S. 197; see Hardaway v. National Surety Co., 150 Fed. 465, 471. Accordingly, the surety may remain liable on his independent obligation to the materialmen, although discharged from his undertaking to the landowner by some act of the latter. Doll v. Crume, 41 Neb. 655, 59 N. W. 806. In the principal case, therefore, even the acceptance of a new contractor by the government would not in itself have discharged the defendant from its obligation to the materialmen. The absence of such assent, however, did show that there had been no novation of principals, and that the continued furnishing of materials by the materialmen did not involve, therefore, any recognition of a new principal on their part. The materialmen, then, must be deemed simply to have taken the new corporation as additional security, and to have retained their rights against the contractor. Such conduct clearly could give the surety no legal defense, and any variation of the risk that might be involved would be too unsubstantial to discharge the surety, in view of the growing tendency of the law to hold surety companies to their obligations in spite of metaphysical variations of the risk. See Rule v. Anderson, 160 Mo. App. 347, 142 S. W. 358.

TAXATION GENERAL LIMITATIONS ON THE TAXING POWER - FEDERAL AGENCY: STATE TAXATION OF INDIAN COAL MINES. The United States leased the right to operate coal mines on lands in Oklahoma belonging to the Choctaw and the Chickasaw Indians, to the plaintiff, under a compact with the Indians to operate the mines in the interests of the tribes. Oklahoma then levied a gross revenue tax on all coal producers. Held, that the plaintiff is exempt from the tax. Choctaw, Oklahoma, & Gulf R. Co. v. Harrison, 235 U. S. 292.

That neither state nor nation can clog the governmental functions of the other by taxation is a necessary and an established proposition. McCulloch v. Maryland, 4 Wheat. (U. S.) 316; Collector v. Day, 11 Wall. (U. S.) 113. But what constitutes a governmental function is a perennial problem, not

easily solved. One clear-cut line has been drawn. No enterprise ordinarily regarded as private becomes a governmental function simply because undertaken by a state. South Carolina v. United States, 199 U. S. 437. See 19 HARV. L. REV. 286. The principal case suggests that there is no corresponding limitation when an otherwise private industry is indulged in by the national government. Whatever the latter does, it does by virtue of its express or implied powers, and is supreme, even though what it has undertaken to do conflicts with what would otherwise be within the constitutional power of the state. Veazie Bank v. Fenno, 8 Wall. (U. S.) 533. Cf. Briscoe v. Bank of Kentucky, 11 Pet. (U. S.) 257. See 23 HARV. L. REV. 465. Nowhere is the independence of the federal government better recognized than in its relations with the Indians. In this field its control is exclusive. Worcester v. Georgia, 6 Pet. (U.S.) 515. See Cherokee Nation v. Georgia, 5 Pet. (U. S.) 1, 17; United States v. Holliday, 3 Wall. (U. S.) 407, 417. Accordingly, whatever it undertakes in their behalf it will see through, despite attempted interference by state taxing power. This freedom from state taxation, however, is limited narrowly to the accomplishment of the federal purpose. Railroad Co. v. Peniston, 18 Wall. (U. S.) 5; National Bank v. Commonwealth, 9 Wall. (U. S.) 353. Hence, in the principal case, the court intimates that a tax on the coal after it had become the personal property of the lessee would be valid. See Thomas v. Gay, 169 U. S. 264, 273.

TAXATION WHERE PROPERTY MAY BE TAXED SUCCESSION TAX ON SECURITIES TEMPORARILY REMOVED FROM THE STATE. - The testatrix, who was domiciled in Florida, carried on a loaning business in Iowa through an agent there. The notes and mortgages securing the loans, which had been kept in Iowa, were removed, a short time before the testatrix's death, to a bank across the state line. Held, that they are subject to the Iowa inheritance tax. In re Adam's Estate, 149 N. W. 531 (Ia.).

An inheritance tax is the price exacted by the state for conferring the privilege of inheriting property by will or descent. Accordingly, the state where the property is located may tax its succession. Matter of Whiting, 150 N. Y. 27, 44 N. E. 715. But a mere chose in action, being intangible, properly has no situs anywhere. See 27 HARV. L. Rev. 107, 113. Least of all can it be said to be located in the obligor's hands. State Tax on Foreign Held Bonds, 15 Wall. (U. S.) 300. Therefore a debt owed to a foreign decedent is not, as such, subject to an inheritance tax. Matter of Preston, 75 N. Y. App. Div. 250, 78 N. Y. Supp. 91. But see Contra, In re Joyslin's Estate, 76 Vt. 88, 56 Atl. 281. However, if the debt is represented by a specialty, the specialty itself, being capable of situs, may be taxed wherever found. New Orleans v. Stempel, 175 U. S. 309; Wheeler v. Sohmer, 233 U. S. 434. See 28 HARV. L. REV. 104. This reasoning will account for the principal case only on the assumption that the securities were removed from the state in order to evade taxation. See Buck v. Beach, 206 U. S. 392, 408; Poppleton v. Yamhill County, 8 Ore. 337. In any event, however, the capital employed in the loaning business, as measured by the notes, was in a sense the testatrix's stock in trade, with a situs in Iowa, and upon this ground also the tax may be upheld. Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395. See 28 HARV. L. REV. 214.

JUSTIFICATION: The defendants,

TORTS INTERFERENCE WITH BUSINESS OR OCCUPATION STRIKE TO COMPEL DISCHARGE OF NON-UNION MEN. members of a trade union, by threatening a strike, induced their employers to discharge the plaintiffs, and to refuse to reemploy them on the ground that they had refused to join the union. Held, that the plaintiffs are entitled to damages and to an injunction. Fairbanks v. McDonald, 106 N. E. 1000 (Mass.). The temporal interests of both workingmen and employers are protected

against intentional disturbance when the disturbance, in the eyes of the law, is for a purpose which public policy does not sanction. The law's traditional bias in favor of competition has led the courts to accord traders and manufacturers complete competitive license, and injury sustained from such competition is not actionable merely because it was intentionally inflicted. Mogul Steamship Co. v. McGregor, [1892] A. C. 25. But see TRADE COMMISSION ACT, FED. STAT. ANN., SUPP. 1915 60, 62. As to workingmen, a group of jurisdictions of which Massachusetts is the leader have conceived that public policy calls for a different view. Workingmen may strike to obtain better wages or working conditions from their own employers. Minasian v. Osborne, 210 Mass. 250, 96 N. E. 1036. See L. D. Willcutt & Sons Co. v. Driscoll, 200 Mass. 110, 113, 85 N. E. 897, 899. They may strike to get work away from other workingmen. Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753. But they may not strike to strengthen the union in its struggle with employers. Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316. The competitive self-interest which justifies coercive trade-union activity must, it is said, be an immediate, individual self-interest. Berry v. Donovan, 188 Mass. 353, 74 N. E. 603. The broader self-interest of which the union is a manifestation is considered too remote. And the social interest in trade unionism is disregarded. The principal case is therefore not an innovation. Lucke v. Clothing Cutters & Trimmers Assembly, 77 Md. 396, 26 Atl. 505; Erdman v. Mitchell, 207 Pa. St. 79, 56 Atl. 327.. Contra, National Protective Ass'n v. Cumming, 170 N. Y. 315, 63 N. E. 389; Kemp v. Division No. 241, 255 Ill. 213, 99 N. E. 389. Yet the shift of emphasis in modern jurisprudence from individual to social interests has gone far toward shaking the foundation on which the Massachusetts cases rest. See 14 HARV. L. REV. 219; 26 HARV. L. REV. 259. And see dissenting opinions by Mr. Justice Holmes in Plant v. Woods, 176 Mass. 492, 504, 57 N. E. 1011, 1015, and in Coppage v. Kansas, 236 U. S. 1, 27.

TORTS - UNUSUAL CASES OF TORT LIABILITY SUIT BY WIFE FOR CAUSING IMPRISONMENT OF HUSBAND. The defendant, in order to satisfy his dislike of the plaintiff's husband, encouraged him to commit adultery, and then procured his arrest and conviction. The plaintiff sues for loss of her husband's society and support caused by the imprisonment. Held, that she cannot recover. Nieberg v. Cohen, 92 Atl. 214 (Vt.).

For a discussion of this case, see NOTES, p. 511.

TRUSTS-CESTUI'S INTEREST IN THE RES NATURE OF Cestur's InterEST. The trustee and cestui que trust of a certain trust fund were citizens of New York. The cestui assigned his interest to the plaintiff, a citizen of Pennsylvania, who brought suit against the trustee in a federal District Court. Section 24 of the federal Judicial Code provides that the District Courts shall not have jurisdiction of "any suit to recover upon any promissory note or other chose in action in favor of any assignee . . . unless such suit might have been prosecuted in such court. if no assignment had been made." The District Court dismissed the bill for want of jurisdiction. Held, that the decree be reversed, partly on the ground that the cestui's right under a trust was a property right and not a "chose in action" within § 24. Brown v. Fletcher, 235 U. S. 589, 35 Sup. Ct. 154.

For a discussion of the nature of the cestui's interest in the trust res, see NOTES, p. 507.

TRUSTS - CREATION AND VALIDITY DIRECTION TO TRUSTEE TO EMPLOY A PARTICULAR PERSON AS ATTORNEY IN ADMINISTERING THE TRUST. — A testator directed in his will that the executors of his estate should employ