Page:Harvard Law Review Volume 12.djvu/302

282 282 HARVARD LAW REVIEW. The case is in line with the generally accepted law on this point. Before interment, when there is discord among relatives of a deceased person as to the place of burial, the wishes of the deceased prevail if known, then those of the husband or wife, and finally of the heirs in order of consanguinity. Larson v. Chase, 47 Minn. 307. After inter- ment the law will not encourage disturbance of the remains, and any of the heirs can prevent their removal. Pierce v. Swan Point Cemetery, 10 R. I. 227. Yet if interment has taken place without the consent of the person who has the right of determining the place of burial, such person can remove the body. Weld v. Walker, 130 Mass. 422. The heirs seem to be regarded as custodians of the remains of their ancestor. It is even held that the right to bring an action against any one who injures a grave-stone, passes, on the death of the person raising the stone, to the heir of the person over whose remains it stands, though he has no title to the land or to the stone itself. 2 Black. Comm. 428; Mitchell V. Thome, 134 N. Y. 536. Evidence — Comparison of Handwriting. — In an action on a note against the maker, other notes written by him were offered in evidence, solely for the purpose of comparing the handwriting in them with that in the note in controversy. Held, that the notes are inadmissible. Wiedman v. Symes, 74 N. W. Rep. 1008 (Mich.). In England the introduction of specimens of handwriting for the purpose of compari- son was always allowed in thj ecclesiastical courts, even though such specimens were not otherwise admissible in the suit. Beaumont v. Perkins, i Phillim. 78. This was prohibited in common-law courts after the development of trial by jury, except in the case of ancient documents. Taylor v. Cook, 8 Price, 650; Doe v. Suckermose, 5 A. & E. 703. However, it is now permitted by statute in England and in several jurisdictions in this country. In the absence of such a statute, the authorities are divided. Vinton v. Pecky 14 Mich. 287 ; Moody v. Rowell, 17 Pick. 490. The principal case expresses the better view. The selection of such a standard of comparison is objectionable, since it may involve collateral issues, and may be unfair. Evidence — Joint Crime — Acquittal of one Principal. — ^ir/a', that the ac- quittal of one of the principals in the crime of adultery does not bar the conviction of the other. Solomon v. State, 45 S. W. Rep. 706 (Tex., Cr. App.). The case is contra to the weight of authority, but is correct on principle. State v, Mainor, 6 Ired. 340. The rule that the acquittal of one principal in the crime of adultery prevents the conviction of the other had its origin at the time when juries decided cases on their own knowledge. At such times both would naturally have to be convicted or acquitted together. At the present day, however, although it is impossible as a matter of fact that one should be guilty without the other, yet it is possible that the guilt of one should be established by evidence which, owing to the rules of evidence, would be inad- missible to prove the guilt of the other. It seems absurd that the principal whose guilt is clearly shown should escape simply because, owing to technical rules, the other can- not be convicted. It is better therefore to cut loose from this antiquated rule, which to-day has no satisfactory reason for existence. Alonzo v. State, 15 Tex. App. 378; State v. Caldwell, 8 Baxt. 576. Insurance — Benefit Associations — Unilateral Contracts. — A Masonic benefit association brought suit to compel defendant, a member of the association, to pay an assessment. The association, on the death of one of its members, assessed the other members a fixed amount, which was turned over to the widow and children of the deceased member. Failure to pay such an assessment forfeited membership and all past payments and future insurance. Held, that the payment of these assessments can- not be enforced. Lehman v. Clark, 51 N. E. Rep. 222 (III.). Certificates of membership in these associations are generally treated by the courts as policies of insurance, though they differ from other policies in having no fixed pre- miums, and no fixed amount to be paid to the beneficiary. Commonwealth v. Wetherbee, 105 Mass. 161. Membership imposes no liability to pay assessments, the association relying on the self-interest of its members, since failure to pay assessments forfeits membership. The court reasons that each payment completes a unilateral contract of insurance, which lasts until the next assessment becomes due. It has been held, how- ever, that membership does impose such a liability. Ellerbee v. Barttey, 119 Mo. 632. The rule in the principal case seems more in accordance with the probable intention of the parties ; otherwise a member is under a perpetual liability to pay all future assess- ments, since the by-laws provide no means of withdrawing from membership except through forfeiture for nonpayment of assessments, and this operates only at the option of the association. Municipal Corporations — Officers de Facto. — In 1896 the town of Dover reorganized as a city, under a new general statute, and elected officers. In June, 1898 in quo warranto proceedings against these officers, the statute was declared unconstitu- tional. While proceedings in error on this decision were pending, the attorney-general