COMMENT.

The maxim, "Nemo tenetur seipsum accusare," by its incorporation into the Fifth Amendment of the Constitution has become one of the foundations of our liberty. A mere rule of evidence in England, it is here made a part of the fundamental law, and, so far as we know, is embodied in every State Constitution as well. Its object plainly is to protect the witness himself and no one else, and the compulsion against which he is protected is both physical and mental duress. Many of the States, and Congress also, have passed statutes having for their object the compelling of witnesses to testify even when their testimony would tend to incriminate themselves, by offering them immunity therefor. But these statutes, to be upheld, must be as broad as the Constitutional provision which they seek to supplant and must give absolute indemnity, so that the witness can never be prosecuted for the crime which he may disclose or which his testimony may be the means of discovering. The compulsion of these statutes has been strenuously resisted by those whom it was sought to compel to testify thereunder, by demanding the protection of the Fifth Amendment. Especially numerous have been the controversies arising out of attempts to secure the protection of this amendment against the provisions of the Interstate Commerce Law. The case of Counselman v. Hitchcock, 142 U. S. 547, decided that the immunity offered by Revised Statutes, Section 860, was insufficient and that the witness could not be compelled to speak. This was probably the cause of an amendment to the Interstate Commerce Act passed in 1893 to effect the same object, which was sustained in Brown v. Walker, 161 U. S. 591 (four judges dissenting) as giving complete immunity.

The proceedings before pension examiners under Revised Statutes, Section 4744, are almost completely analogous to the proceedings before the Interstate Commerce Commission, except that no amendment giving complete immunity has been adopted and Revised Statutes, Section 860, still applies; but they have not been challenged and investigated as fully, probably because of the differences between the two classes of citizens examined. For this reason the case of United States v. Bell, 81 Fed. Rep. 830, becomes very interesting. Bell, an ignorant negro, had by the

laxity of our laws, been admitted to the bar and made a Notary Public, and, acting in this capacity, had perpetrated certain frauds on the Pension Bureau, consisting in the fraudulent issuing of certain vouchers and the affixing of his notarial seal to a false affidavit. He was compelled by the pension examiner to come before him for examination, although no subpoena was issued for him, and was then interrogated about the execution of these documents, without being told by the examiner that he had the right to remain silent on any matter that would tend to incriminate him. As was natural for an ignorant negro, who had probably never heard of this constitutional provision, was unaware of his rights in the matter, and was not permitted by the examiner to consult counsel, he swore falsely and the report containing his answers was afterwards introduced in evidence against him on a prosecution for perjury.

All these statutes which seek to compel a witness's testimony by offering him immunity therefor, contain a proviso that no person shall be exempt from prosecution and punishment for perjury committed in so testifying. Of course, if the immunity offered is as broad as the Constitutional provision, the witness. may be compelled to answer and as a corollary may be indicted for perjury if he swears falsely. But Counselman's case settled it that the immunity offered by Revised Statutes, Section 860, is not as broad as the Constitutional guaranty, and therefore Bell was not compelled to answer. Whether this proviso that the witness shall not be protected against prosecution for perjury committed during the examination itself is consistent with the protection of the Fifth Amendment has never been decided, and the court here expressly refused to decide the point, holding that the fact that the examination was taken under compulsion and that the witness was ignorant of his rights and was not warned of his privilege alone made the record inadmissible. The witness did not waive his privilege, as he did not knowingly and understandingly abandon it, and the examination was almost purely inquisitorial, as no sufficient safeguards against selfincriminating testimony were thrown around him.

Within the last few years several of the States have passed laws regulating the sale of "convict made" goods. Two of the largest, New York and Ohio, passed in 1894 such laws differing from each other in no essential particular. The Supreme Court of Ohio in Arnold v. Yander, 47 N. E. Rep. 50, has recently declared the law of that State to be unconstitutional, as conflicting

with Article I, Section 8, of the United States Constitution-the Interstate Commerce clause. It was made unlawful for any person to expose for sale in Ohio any convict-made goods without first obtaining from the Secretary of State a license; but the act especially provided that it should not affect the products of the prisons of the State of Ohio. In Mobile Co. v. Kimball, 102 U. S. 691, 702, commerce is defined as consisting in "intercourse and traffic, including in these terms navigation, and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities." No State Legislature, only Congress, can declare that convict-made goods are not articles of commerce and then discriminate against them or exclude them from the State by unfriendly legislation. since Leloup v. Port of Mobile, 127 U. S. 640, the license fee is a tax upon goods imported from another State and therefore an illegal interference with interstate commerce.

The New York law has not yet been passed upon by its courts, but when the time comes, the same conclusion cannot fail to be reached by them. In People v Hawkins, 85 Hun. 43, a kindred law providing that no convict-made goods of other States can be offered for sale in New York State without the label "convict made," was held unconstitutional on the same grounds as above.

CORPORATIONS.

RECENT CASES.

Proceeding against Stockholder-Set-off.-Musgrave v. Glen Elder Farmers' A. Co-op. S. and P. Ass'n, 48 Pac. Rep. 338 (Kan.). In an action against a stockholder in a corporation to compel payment of his stock liability, he may plead as set-off against the claim of plaintiff creditors the indebtedness of the corporation to himself. In Mathez v. Neideg, 72 N. Y. 100, it was said that "the statute liability creates a fund which belongs to the creditors to secure the payment of their debts, but it belongs to all the creditors, as well those who are stockholders as those who are not;" and in Boyd v. Hall, 56 Ga. 563, "The fact that he is a stockholder can make no difference." Also in Jarman's Adm'r v. Benton, 79 Mo. 155, it was said, that when "the trust fund in dispute is handed over entirely to the suing creditor," he "thereby obtains full preference and satisfaction of his demand, thus obtaining the advantage which was denied to the other creditor, merely because he was a stockholder.'' See also 2 Beach on Private Corporations, Sec. 277. Mahan, P. J., dissenting, holds that it is the policy of the law to create a fund, a right to which the creditors of the corporation may resort after insolvency, and that neither the corporation nor its members can destroy or abridge this right by contract with each other during the actual existence of the corporation.

Discovery-Examination of Books before Trial-Examination of Defendant.-Stern v. Metropolitan Telephone and Telegraph Co., 46 N. Y. Supp. 110. Plaintiff alleged in his complaint that he had been a subscriber of defendant telephone company for some period previous to the time when, on the pretense of putting in a new instrument, defendant attempted to raise the rent of the instrument by a considerable sum. Also, inasmuch as defendant's business was affected with a public use and in essence a monopoly, and a common carrier for hire of oral and written messages, it was under an implied contract to furnish its service for a reasonable sum. Defendant's answer put in issue the charge that the new sum demanded was unlawful, unjust and illegal, stating that the expenses of operation increased in greater proportion than the number of subscribers. Defendant did not attempt to give figures to sustain its contention, and the court held that under the circumstances plaintiff had a right to demand an examination of the books and officers of the corporation before the trial, it being not certain that such examination could be had during the trial, as the affidavits showed the president and the treasurer to be non-residents of the State. The court quoted Presbrey v. Public

Opinion Co., 6 App. Div. 600, 39 N. Y. Supp. 957, as illustrative of several decisions denying the accuracy of defendant's statement that such an examination is never held to be necessary after issue joined, when it appears that the examination can be had at the trial, except where fraud is alleged, or some relation of trust confers a present right to know the facts to be elicited at the trial.

RELATIVE RIGHTS.

Money Lost by Agent-Recovery by Principal.-Thompson v. Hynds et al., 49 Pac. 293 (Utah). Where a husband has been entrusted with a sum of money by his wife for the specific purpose of investing it for her in mining stocks, and has testified that he gambled it away to defendants; held, that he was acting in the capacity of her agent, and she as principal can recover it back, as the transaction gave defendant winne:s no title to the money. Pierson v. Fuhrmann, 27 Pac. 1015; Mason v. Waite, 17 Mass. 560; Keener Quasi Cont., 183, 188, and others quoted.

Right of Action-Compelling the Discharge of a Servant.-Perkins v. Pendleton, 38 Atlantic Rep. 96 (Me.). A servant has a right of action against a third person who has unlawfully and by improper means procured his discharge from an employment and on account of which he has suffered injury. This is held to be so even though the master might have lawfully discharged the servant of his own accord. This case is somewhat different from Lumley v. Gye, 2 El. and Bl. 216, and Bowen v. Hall, 6 Q. B. Div. 333, and the early American and English decisions following them. It is held in these cases that the employer has a right of action against a third person who unlawfully procures a breach of contract of service. Perkins v. Pendleton holds there is no distinction and that the rule applies, both upon principle and authority, where the employer is induced to break his contract or where it is broken by the employee.

Support of Child-Liability of Father after Divorce.-Dolloff v. Dolloff, 38 Atl. Rep. 19 (N. H.). A divorce procured by the mother with alimony and custody of the child, does not release the father from the obligation to support the child. Alimony is not maintenance to the children but to the wife.

MISCELLANEOUS.

Power of Congress-Postal Regulations-Right of Citizen to Use Mails-Due Process of Law.-Hoover v. McChesney, 81 Fed. Rep. 472. Congress has the right to exclude from the mails such matter as it may deem injurious to the morals of the people; but it has never yet been held to have the power to delegate to an executive officer the power to determine the person or persons who shall be excluded from the right of sending and receiving mail by the postal system. For an