Notes of Cases who had taken a civil service examination for the police force, stated that he was on the eligible list in March, 1907, and asked that the Selectmen of Hyde Park, Mass., be ordered to make requisition on the civil service com mission for four eligibles to take the places of four policemen appointed without such requi sition. The respondents, the Selectmen of Hyde Park, claimed that it did not appear by the petition that there was any vacancy on the police force, and that his proper remedy was by an information in the nature of quo warranto by the Attorney-General to oust the four patrolmen claimed to have been illegally appointed. The Court, per Mr. Jus tice Sheldon, Jan. 28, 1909, sustained the respondents' demurrer. CONTEMPT. (When order defied is be yond Court's authority.) Miss.—A person who refuses to obey an order which the Court has no power to make is held, in Mc Henry v. State, 44 So. Rep. 831, 16 L. R. A. (N. S.) 1062, not to be guilty of contempt, even though the court has general jurisdiction over the pro ceedings in which the order is made. CONTRACTS. (Full liability devolves on surviving. party to improper joint traffic agree ment.) Ky.—One of several railroad com panies which entered into a contract for the joint use of a bridge, which, through its officers, controls the bridge company, and agrees to the exaction of excessive tolls for the use of the bridge, and the secret division among certain contracting parties of the surplus thus accumulated, in consequence of which a judgment is recovered against the bridge company by the excluded road for its share of such surplus, is held, in Dodd v. Pitts burg, C. C. &• St. L. R. Co., 106 S. W. 787, 16 L. R. A. (N. S.) 898, to be bound, because of its wrongful diversion of the fund, to make good to the bridge company the whole amount of the judgment, where the other roads which shared in the division have become insolvent. CONTRACTS. (Defect in machine which defendant has promised without consider ation to keep in proper repair.) U. S.0. 0. A. —Liability arising from a defect in a machine leased by the United Shoe Machinery Com pany was discussed in a decision sent down Jan. 19 by the United States Circuit Court of Appeals in the suits of McClaren v. United Shoe Machinery Co. and McClaren v. Weber Brothers' Shoe Company. The plaintiff was employed by the Weber company at its
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factory in North Adams, Mass. He was hurt by reason of a defect in a stitching machine, June 14, 1906. He brought two actions, one against his employer, in which suit no new ques tion of law is decided by the Court of Appeals; the other against the Shoe Machinery Co. for breach of an alleged promise made by the defendant to the plaintiff directly, without stated consideration, to repair and keep the machine in suitable condition, with the further representation of the defendant that this had been accomplished. In the latter action, the Court of Appeals affirms the decree of the Circuit Court, and says: "If, contrary to what is shown by the con tract to which we have referred, the defen dant had in fact agreed with the plaintiff's employer to have or maintain the machine in proper repair and if, in consequence of that obligation on the part of the defendant and as flowing out of it, had repeated this promise to the plaintiff and had represented to him that such repairs had been made, the law, which always favors short cuts, so to speak, might well have said that there was a novation by virtue of which the defendant was bound to the plaintiff; but under the cir cumstances and as apparently determined by the Circuit Court, the alleged promise and the alleged representation growing out of it were purely voluntary, wholly without con sideration, and not enforceable in law." CRIMINAL LAW. (Right of accused to be present at rendition of verdict.) Miss.— During his trial for a capital offense accused was on bail. When the jury brought in its verdict of manslaughter he was out in the country for the night. In Sherrod v. State, 47 So. Rep. 554, the Supreme Court of Missis sippi held that wherever the charge is capital, the defendant cannot waive his right to be present, and whether he be in jail, subject to the power of the court to produce him, or on bond, it is fatal error to receive the verdict in his absence. This, although not a constitutional right, is one secured by statute and the common law. The conviction of manslaughter having been reversed, accused was discharged, as any further prosecution would have resulted in placing him twice in jeopardy for the same offense. DURESS. (Marriage to stop a prosecution not voidable.) Qa.—A man who elects to stop a prosecution for seduction by marrying the woman alleged to have been seduced, and
