NOTES OF RECENT CASES

Service out of the Jurisdiction. (F. T. Piggott, London, William Clowes & Son, 1892). The cases have been collected by the writer of this note in an article on Jurisdiction over NonResidents in Personal Actions, in the " Columbia Law Review " for June last. Edward Q. Keasbey. This case squarely holds that the right of a stockholder to enforce a claim of the corporation against a stranger is a cause of action belonging to the stockholder, and not merely a cause of action on behalf of the corporation which the stockholder may under certain circumstances as sert on behalf of the corporation. The majority opinion is in accord with the doctrine of the Fed eral courts, which determine questions of juris diction on the ground of diverse citizenship in such cases by looking to the actual citizenship of the stockholder suing (Dodge v. Woolsey, 18 How. 331), rather than to the fiction which would be resorted to were the action by the corporation itself, that all stockholders are citizens of the state creating the corporation (Barrow Steamship Co. v. Kane, 170 U. S. 100). The Federal courts are in a measure protected against frauds upon their jurisdiction in such cases by Equity Rule 94, requiring the bill to be verified and to allege that the suit is not a collusive one, to confer on a court of the United States jurisdiction in a case of which it would not otherwise have cognizance. Some safeguard should be provided in New York should this doctrine be affirmed by the Court of Appeals. Frank Irvine. DAMAGES. (Personal Injuries — Fright and Nervous Shock.) N. Y. S. C., App. Div. — Newton v. New York, New Haven & Hartford Railroad Company, 94 New York Supplement, 825, while not out of line with the general current of author ity on the question involved, is interesting because it presents, in what might be called an exaggerated form, the facts which give rise to the holding. Plaintiff was a passenger on a train with which one of defendant's trains collided. Plaintiff testified that it threw him over in the seat but did not inflict any bruises or injury and that he felt no pain. After the accident plaintiff continued on his way on foot and went to his office. There after plaintiff's condition continued to get more serious, and a physician testified that he was suffering from dilation of the heart and from valvular disease. Plaintiff's physical condition was, as a matter of fact, very serious, and he finally died. At the trial plaintiff's counsel expressly stated that they did not claim that any physical injuries were inflicted. There was expert testi mony that plaintiff's subsequent condition could

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have been the result of nervous shock. Under these circumstances it is held that there could be no recovery for the purely mental effect of the accident upon the plaintiff in the absence of any proof of any physical injury whatever. EVIDENCE. (Conflicting Presumptions — Antecedent Marriage — Proof.) Md. — An inter esting question of evidence and the effect of con flicting presumptions, which has not been many times before the courts of this country, is decided in Bowman v. Little, 61 Atlantic Reporter, 223. This question relates to the quantity, or rather quality, of proof required to establish a first marriage in a civil case in which each party claims property as the wife of a deceased person. Under these circumstances it is decided that as proof of the first marriage would inevitably brand the deceased with the crime of bigamy and bas tardize the offspring of the second marriage, the first marriage must be established as an actual fact by strict proof, the presumption being that the subsequent marriage proven to have been actually solemnized was the valid one. The court says that the reason upon which the doctrine that there must be strict proof of the first marriage rests is apparent. When the presumption of a lawful marriage is met by a counter presumption of innocence, the former must yield to the force of the latter. After it has been shown that there was an actual marriage solemnized in the method which the law prescribes, every inference is in voked in support of its validity and against an alleged antecedent marriage, because the presump tions of the law are always in favor of innocence and of legitimacy. The two English cases of Taylor v. Taylor, i Lee. 571, 5 Eng. Ecc. Rep. 454, and King v. Inhabitants of Twyning, 2 Bar. & Aid. 386, are cited in support of the holding, the latter case being quoted with approval. For a very full collection of the cases on pre sumptions of the validity of marriages, see 19 Am. & Eng. Ency. Law 1202. Our case holds that when a marriage, otherwise valid, is attacked on the ground that a prior marriage was still in ex istence when the one in question was consum mated, it will be presumed that no such prior marriage took place. When such prior marriage has been established, courts have presumed the death of the former spouse. If it is made to appear that the former spouse is still living, a divorce will be presumed. Our case is no doubt right. Cer tainly the one who relies on such prior marriage must bring in some evidence of it. He has the duty of going forward. Wigmore, Evidence, §2487. But suppose he now introduces evidence of cohabitation as man and wife and reputation