Page:Harvard Law Review Volume 9.djvu/576

548 548 HARVARD LAW REVIEW. It would seem, therefore, in the principal case, that the growing corn passed to the life tenant's executor (Taylor, Landlord & Tenant, § 534), and that the plaintiff had no interest in it. Judgments — Res Adjudicata. — The defendant was arrested and an order of de- portation issued under the Chinese Exclusion Act. She had previously been arrested and discharged on habeas corpus proceedings. Held^ that though the discharge was obtained by perjury and a fraudulent writing, it was decisive of the present case, and the order of deportation must be reversed. U. S. v. Chung Shee, 71 Fed. Rep. 277. This is sound, and in accord with previous decisions. Collateral impeachment of a judgment in habeas corpus can be made only on the ground of want of jurisdiction. Freeman, Judgments, § 619. Judgments in general are not subject to collateral attack by parties on the ground set forth in this case. See Freeman, § 334, and Wells's Res Adjudicata, Chap. I. Sec. 9. Life Insurance — Rights of Beneficiary. — By statute the beneficiary in a life policy is entitled to the proceeds of the policy, not exceeding $io,ooo, free from the claims of creditors of the insured, though the premiums were paid by him. Htld^ that a man's wife, the beneficiary in several policies maintained by him, may retain the proceeds, though it turns out his estate is bankrupt and the proceeds exceed $10,000, since it did not appear that he paid premiums after bankruptcy. A p(licy payable to a beneficiary is not part of the estate of the person who pays the premiums. Jones V. Patty, 18 So. Rep. 794 (Miss.). The decision is in accord with the weight of authority that the beneficiary named in a policy has a vested right with which the insured cannot interfere. Pingrey v. Ins. Co, 144 Mass. 374, I Harv. Law Rev. 156; Garner v. Ins. Co., no N. Y. 266, 2 Harv. Law Rev. 239; Bliss on Life Ins. § 318; Beach on Ins. § 602. But see 17 Western Jurist, 297. This seems the better view. It is difficult to say just what the nature of this right is because of the confusion on the subject of the rights of beneficiaries in contracts. It is not a trust, since there is no res held in trust, and yet it has elements similar to a trust. There is a difficulty, however, when premiums are paid by a bank- rupt. Even without a statute it would seem that a reasonable provision may be made for his family by a bankrupt. Central Bank v. Hume, 12S U. S. 195; McCutcheons Appeal, 99 Pa. St. 133. Cf. Siokes v. Coffey, 8 Bush, 533. Mortgage— Defective Record of Instrument. — A mortgage left at the re- corder's office is to be regarded as recorded from that time, in spite of the fact that it is actually recorded in the wrong book. Farribee v. McKerrihan, 33 Atl. Rep. 583 (Pa.). This may be regarded as the settled doctrine in Pennsylvania since the case of Glad- ing V. Frick, 88 Pa. St. 460, which overruled Luck's Appeal, 44 Pa. St. 519, going back to the case of MLAinahan v. Reeside, 9 Watts, 511. The rule may seem harsh on a pur- chaser, but that the owner of land should suffer for the negligence of the recorder seems equally hard. Many instruments may be wrongly recorded in the alsei.ce of negligence, as where they appear to be deeds, but are in fact mortgages. Should they be held unrecorded until after some court has passed on their character, and so enabled them to be entered on the right book.'' What if the court then reverses its decision } Must the owner wait till then before he can rely on the record.? He has done all that is required of him when he deposits the deed in the hands of the recorder. That is all the statute demands of him. Of course, if it exacted not only a recording, but a re- cording in such and such a book, a different decision might be reached. Patent Law — Generic and Specific Patents. — The issue by the patent office of a specific patent covering part of an invention f(ir which an application is pending in the office is not an anticipation of the broader patent when it is issued. rhomson-Houston Electric Co. v. E. ^ II. Ry. Co., 71 Fed. Rep. 396. See Notes. Persons — Marriage after Divorce — Validity of Prohibited Marriage. ^^/^, that where, under a statute, the decree of divorce prohibited the offender's marrying again, a marriage in spite of this is not void, there being no nullity clause in the statute. Craivford v. State, 18 So. Rep. 848 (Miss.). Being res nova in Mississippi, the court avowedly adopts this view against the weight of authority. It examines the nature of the marriage contract, and finds strong grounds of public policy for holding such marriages valid when the statute will per- mit. The tendency of the courts to do this is pointed out in the cases that have arisen under statutes regulating the manner of solemnizing marriages. See Bishop, Mar., Div. & Sep., §§ 449, 698, 707. On the other hand, the Supreme Court of Vermont in the recent case of Ovitt v. Smith, 33 Atl. Rep. 769, holds such a marriage void, on the ground that a marriage contract, like any other contract, is void when prohibited by law.