Page:Harvard Law Review Volume 5.djvu/307

291 RECENT CASES. 291 Corporations — Bill by Stockholder against Directors — Defec- tive Allegations. — Bill seeks to restrain directors from doing certain illegal acts. It alleges, inter alia, that the defendants own a controlling interest in the stock and that protests have been made. It did not allege that such protests were made by or on behalf of the plaintiff or any other stockholder. Prelimi- nary injunction refused, since it did not appear what particular efforts had been made by plaintiff to secure action by the directors, nor the causes of his failure to obtain relief from them. Weidenfeld v. Allegheny & K. R. Co., 47 Fed. Rep. 11. Criminal Law Burglary — Intent. — Accused proposed to X to rob the store of M, X's father-in-law. X, with the connivance of M, consented, in order to secure the conviction of accused. After dark they went together to the store; X broke in; accused remained outside, took a piece of bacon that X handed out, and carried it off. Held, that these facts did not warrant a conviction of burg- lary. Accused was not guilty independently, because he did not himself enter; nor was he guilty as a principal in the second degree, because X, whom he was aiding, had no felonious intent. States. Hayes, 16 S. W. Rep. 514 (Mo.). Criminal Law — Intoxicating Liquors — Druggist's License, — Under a statute declaring that the term "spirituous and intoxicating liquors" shall be held to include all " mixed liquors " and all ** mixed liquor of which a part is spirituous and intoxicating," liquors spirituous and intoxicating do not lose their identity as such when compounded with drugs or chemicals for use as medicine, or in commerce or the arts. And the fact that an individual has been licensed as a druggist or pharmacist does not entitle him to use spirituous or intoxicating liquors in compounding the medicine which he sells, without first obtaining the proper license for the sale of spirituous and intoxicating liquors. Stale v. Gray, 22 Atl. Rep. 675 (Conn.). Criminal Law — Jurisdiction — Offence included in Another. — The offence charged in an indictment determines the jurisdiction. The circuit court of Florida having original jurisdiction over assaults with intent to kill, but not over simple assaults, may nevertheless find a prisoner charged with assault with intent to kill, guilty of simple assault; and a statute giving such power does not violate the constitutional provision that circuit courts shall have jurisdiction over offences not cognizable by inferior courts. Winburn v. State, 9 So. Rep. 694 (Fla.). Criminal Law — Previous Acquittal — Collateral Attack. — Proof of a previous acquittal for the same offence will discharge a prisoner, when the first prosecution was commenced bona Jide, although the acquittal was obtained by bribing the prosecuting attorney; but such acquittal will be of no avail if the prosecution was begun by collusion with the prisoner, in order that he might be tried at a time favorable for his escape. Shideler v. State, 28 N. E. Rep. 537 (Ind.). Damages — Lease — Breach of Covenant to Deliver up in Repair. — Lessee in breach of his covenant with lessor failed to deliver up the premises in good repair. The lessor, however, had made a new lease of the premises to a third party, to take effect at the expiration of the old lease, the new lessee cove- nanting to lay out ^200 in making alterations in the house, in order to throw it into connection with the adjoining houses. In altering the house he tore down the parts left out of repair by the original lessee, who is now sued for breach of his covenant. The lessor sustained no actua damage. Held, the measure of damages for breach of the covenant is the amount required to put the premises into such repair as was originally contemplated by the covenant. Joyner v. Weeks, 39 W. R. 583 (Eng.). Equity — Injunction — ATTEMPr to Anticipate. — When upon receiving notice of motion for an injunction to restrain him from building, the defendant immediately puts on a gang of extra men and builds forty feet before receiving notice that an ex parte interim injunction has been granted: Held, that upon the motion coming on the court will immediately enjoin the defendant from al- lowing the wall to remain without awaiting the result of the trial. Daniel v. Ferguson [1891] 2 Ch. 27. Evidence — Judicial Notice — Patents. — Courts will not take judicial notice of patents for inventions. Bottle Seal Co. v. De La Vergne Bottle & Seal Co., 47 Fed. Rep. 59.