630
THE GREEN BAG
The cases relied on by the Texas Court for its original, but discarded opinion, hold that if in a prior criminal prosecution the defendant wins, that adjudicates all facts as between him and the state even for the purpose of a subsequent civil suit. This is rather hard to support on principle. That the defendant was able to raise a reasonable doubt as to such facts should hardly conclude the state in a subsequent civil action where the defendant to get a verdict must do much more than raise such a doubt. The Supreme Court of the United States, however, refused to follow this reasoning and held that the adjudication was final. Coffey v. U. S. 116 U. S., 436, 443. A word as to the possibility of using the judg ment in the second way suggested above: namely as evidence of the disputed fact. That cannot be done where the judgment has not made the fact res judicata. Black, Judgments, §505: Dowel v. State, 83 Ind. 357. A judgment generally is either conclusive or of no effect. Why? Simply because it is merely the hearsay opinion of the court that gave it. As between the parties the court is adjudicating the matter: but as to third parties the court's judgment is merely its expres sion of opinion, not based on personal knowledge, not substituted to the tests of oath, confrontation, and cross-examination. It is inadmissible both because it is opinion evidence and because it is hearsay evidence. The courts suggestion, there fore, at page 643, that the judgment though not conclusive should have the effect of prima facie evidence seems improper. C. B. Whittier. HUSBAND AND WIFE. (Alienation of Hus band's Affections.) Ore. — Oregon, like many other states, has a statute removing all disabilities on a wife which are not imposed or recognized as existing on the husband. Under this statute the court in Kccni'. Keen, 90 Pac. 147. holds that a wife may maintain an action for an alienation of her husband's affections. As supporting authori ties the court cites Postelwaite v. Postelwaite, 1 Ind. App. 473, 28 N. E. 99; Beach v. Brown, 20 Wash. 266, 55 Pac. 46; 43 L. R. A. 114; 72 Am. St. Rep. 98. As to the state of the authorities on this proposition the court says, " In a few of the states it has been ruled by the courts of last resort that such an action cannot be maintained; but where modern legislation recognizes the doctrine that the wife has rights which the court should respect, reason and a great weight of authority uphold the principle that for the loss of consortium, which includes the husband's society, love and assistance, the law now affords her an adequate remedy." INSURANCE. (Jurisdiction of Suits by Policy Holders.) Mass. — In Peters v. Equitable Life Assurance Society, 81 N. E. Rep. 964, the court
holds that it has jurisdiction of a suit by a life policy holder against a foreign stock company to enforce the policy holder's contract rights in surplus profits. However inconsiderable the amount of the capital stock may be in comparison with its other assets, it is nevertheless a stock com pany and the relation between it and its policy holder is that of debtor and creditor and not that of a member of a mutual company and the com pany itself, especially in view of the fact that the company's directors are elected by its stock holders and not by the policy holders. In such a suit the court holds that the inconvenience to which the company will be subjected by reason of the multiplicity of the books and complexity of the accounts involved may not be taken into account by the court in assuming jurisdiction. MONOPOLIES. (Contracts, Illegality.) N. Y. Sup. Ct. — New York has a law prohibiting an arrangement or combination whereby a monopoly in the production or sale of any article in common use is or may be created, or whereby competition may be restrained or prevented. This law, it was contended in Brooklyn Distilling Co. v. Standard Distilling and Distributing Co., 105 N. Y. S., 264, invalidated a lease of a distillery to a corporation organized to create a monoply in the manufacture and sale of alcoholic and spirituous liquors, especially in view of the fact that the lessor knew the motive of the lessee in taking the lease was to create a monoply. The court takes the ground that the statute does not prevent one selling or leasing property, nor does it prevent one buying or leasing property, to prevent competition. It cites in support thereof, Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464; Leslie v. Lorillard, no N. Y. 519, 18 N. E. 363, 1 L. R. A. 456; Tode v. Gross, 127 N. Y. 480. 28 N. E. 469, 13 L. R. A. 652, 24 Am. State Rep. 475. The fact that the lessor knew the lessee's motive in leasing the distillery, the court did not regard as of any moment. The controlling point for the court was that the lessor did not in any way become a party to the illegal combination or participate to any extent in the scheme to avoid the statute. In view of these circumstances, the court held that the lease was valid. PRACTICE. (Evidence, Appeal and Error.) N. J. — The New Jersey law which provides that if it appears from the record in a criminal case that plaintiff in error on the trial below suffered mani fest wrong or injury either in the admission or rejection of testimony, whether objection was made thereto or not, the appellate court shall order a new trial receives construction in State v. Hummer, 67 Atl. Rep. 294. It was contended that under this statute the plaintiff in error was
