NOTES OF RECENT CASES v. Brooklyn Heights R. Co., 70 N. E. 857, is also quoted from at length, on the ground that it un equivocally asserts the principle that recovery can be had for purely mental suffering without any physical pain resulting from the breach of public duty by a common carrier. In conclusion the court reviews at considerable length cases from Tennessee, Alabama, Kentucky, Iowa, Louisiana, South Carolina, Nevada, and Washington where damages have been allowed, and also cases where they have been denied from Florida, Georgia, Illinois, Indiana, Kansas, Minnesota, Mississippi, Ohio, West Virginia, Wisconsin, and Virginia. OATH. (PERSONAL PRESENCE OF AFFIANT — VERIFICATION BY TELEPHONE.) TEXAS COURT OP CIVIL APPEALS. An interesting case, which involves a novel state of facts, and becomes more interesting still when compared with the case of Western Union Tele graph Co. v. Bailey, 42 Southeastern Reporter 89, which was mentioned at page 858 of the Decem ber (1094) number of THE GREEN BAG, is the case of Sullivan v. First National Bank of Flatonia, 83 Southwestern Reporter 421. The former case marked a further extension of legal recognition of the telegraph, it beingthere held that a tele graphic notice of the sanction of a writ of cerlioran and of the time and place of hearing was a notice in writing within the meaning of the Georgia statute, requiring written notice to be given. In the latter case, the Court of Civil Appeals of Texas decides that an oath cannot be administered by telephone. It thus appears that though the elec tric current may be regarded as a sufficiently reliable bearer of intelligence to subserve the pur poses of a legal notice, it cannot effect a transfer of so delicate a thing as the sanction of an oath, which, it appears, must be delivered in person. In the case under consideration, an application for a continuance bore the following remarkable jurat: "Sworn to and subscribed before me, this twenty-fourth day of December, 1903, by calling defendant, W. K. Sullivan, to the telephone, and asking him whether the contents of the foregoing application for continuance, which I had heard read to him over the 'phone were true, to which he ansrwered in the affirmative, and stated that he had authorized his attorney to sign his name for him." In considering the sufficiency of this method of verification, the court states that in former times, and especially in other states and countries, certain forms were required in the making of an oath, and that the legislature had in mind the meaning and history of an oath when they required an application for a continuance to
be sworn to. All these forms, such as raising the right hand, touching the Bible, Pentateuch, or the Koran, contemplated the personal presence of the affiant, and hence it is concluded that personal presence is required by the Texas statute, although there is no express provision to this effect. In answer to a contention that it is sufficient that the clerk and the attorney recognized the voice of affiant, the court says: "This brings us to a further consideration of the question with rela tion to a possible prosecution for perjury. In such a prosecution there must be established be yond a reasonable doubt the fact that an oath had been legally made, that the matter sworn to was false in fact, and that the defendant in the prose cution was the one who made the oath. Now, it may be true that one can be certainly identified by the sound of his voice, but that is not enough for the purposes of the rule in such a case. It may be true that the officer, when he takes the affidavit of one well known to him, might recog nize his voice over the telephone, and therefrom be able to testify that he took the oath and made the affidavit an issue. But it must be borne in mind that the law does not require the clerk or notary to be acquainted with one who becomes an affiant before them. A stranger may appear, sign an affidavit, and demand that the officer swear him and affix his jurat. In that case the officer certifies and can swear to no more than that the man who affixed the name to the affidavit swore to its truth. The name he signed may have been fictitious, but the individual swore to it as the clerk or notary certified, and he would be subject under that name or his true one to a prosecution for perjury. Now, if the contention of appellant is sound, the rule must be laid down broadly, and whoever might demand the official jurat by his personal presence might also demand it over the telephone." STATUTE OF LIMITATIONS. (WAIVER BY PRIVATE CONTRACT — INSURANCE CASES.) KENTUCKY COURT OP APPEALS. A decision which will have a far-reaching effect in insurance circles, and which is of interest gen erally because it is so at variance with the gener ally accepted doctrine, is that of Union Cent. Life Ins. Co. v. Spinks, 83 Southwestern Reporter, 615. The holding in brief is, that a provision in a life insurance policy, to the effect that no suit shall be maintained thereon unless begun within one year from the death of the insured, is void as against the public policy, the Kentucky statute of limita tions prescribing a period of fifteen years for ac tions on such contracts. The following from the
