obligations and powers. Canada Southern Ry. Co. v. Gebhard, 109 U. S. 527. See 28 HARV. L. REV. 797. It follows that the validity of changes in the bylaws of the corporation should be governed by the laws of the state which incorporated it.

CONSIDERATION - CONSIDERATION WHAT CONSTITUTES CONSIDERATION MOVING TO PROMISOR FROM THIRD PERSON. — The plaintiff, a manufacturer, sold goods to a jobber who agreed not to resell below fixed prices and to obtain similar price-maintenance agreements from those to whom he sold. The jobber obtained such an agreement from the defendant and gave the consideration therefor. The plaintiff now brings an action for breach of this agreement. For the purposes of the decision the House of Lords assumed that the promise ran direct to the plaintiff, as undisclosed principal, but that he gave no consideration for it. Held, that the plaintiff may not recover. Dunlop Pneumatic Tyre Co. v. Selfridge & Co., [1915] A. C. 847.

From an early date English courts have consistently refused a right of action to the beneficiary in either the debtor-creditor or sole beneficiary type of contracts for the benefit of a third party. Bourne v. Mason, 1 Vent. 6; Tweddle v. Atkinson, 1 B. & S. 393. In these cases the real difficulty with the plaintiff's position is that no promise was made to him. See 22 HARV. L. REV. 223. However the courts almost invariably go on the ground that the plaintiff is a stranger to the consideration. This view is due to the influence of the history of the action of assumpsit, as it originated in an action of deceit in which the plaintiff recovered damages for the defendant's having caused him to part with value on a false promise. To-day the cause of action no longer consists in a tort but in the breach of a promise for which the defendant received consideration. Under this view there is no difficulty in letting a plaintiff sue on a promise made to him for which a third party furnished the consideration. Hamilton v. Hamilton, 127 N. Y. App. Div. 871, 112 N. Y. Supp. 10. See 25 HARV. L. REV. 187. This result is generally reached in America even in jurisdictions rejecting Lawrence v. Fox. Palmer Savings Bank v. Insurance Co. of North America, 166 Mass. 189, 44 N. E. 211. The same course would be open to English courts did they not fail to distinguish a plaintiff who is a true promisee though he gave no consideration, from the plaintiff who is a stranger to both consideration and promise. The decision of the House of Lords in the principal case has definitely closed the door upon this distinction in England.

CONSTITUTIONAL LAW - TRIAL BY JURY CHANGE OF JUDGES DURING TRIAL-WAIVER OF USUAL PROCEDURE. The defendant, Freeman, was indicted with others for conspiring to defraud by the use of the United States mails. After the trial had proceeded for eight weeks, Judge Hough, who was presiding, became critically ill, and by the consent of all parties, Judge Mayer took his place for the remainder of the trial, familiarizing himself with the proceedings by reading the record. The defendant was convicted, and appealed, on the ground that the change of judges was a violation of his constitutional rights. Held, that the judgment must be reversed. Freeman v. United States (not yet reported).

For a discussion of the principles, see NOTES, p. 83.

CONTRIBUTORY NEGLIGENCE - IMPUTED NEGLIGENCE NEGLIGENCE OF HUSBAND IN CHARGE OF CHILD IMPUTED TO WIFE IN RECOVERY UNDER DEATH STATUTE. The child of the plaintiff was killed by the concurrent negligence of the defendant and the plaintiff's husband, who had charge of the child, and was killed at the same time. The plaintiff now sues for the death of her child under a death statute giving a direct right of action to parents. Held, that the marital relation imputes the negligence of the hus

band to the plaintiff in bar of recovery. Darbrinsky v. Pennsylvania Co., 94 Atl. 269 (Pa.).

It is disputed whether the contributory negligence of a beneficiary will defeat the recovery under a death statute by the administrator for the estate. McKay v. Syracuse Rapid Transit Ry. Co., 208 N. Y. 359, 101 N. E. 885. Contra, Richmond, etc. R. Co. v. Martin's Adm'r, 102 Va. 201, 45 S. E. 894. It is clear, however, that a negligent beneficiary cannot recover in his own right. Indianapolis Street Ry. Co. v. Antrobus, 33 Ind. App. 663, 71 N. E. 971; Johnson v. Reading City Ry. Co., 160 Pa. St. 647, 28 Atl. 1001. Therefore, if the negligence of the dead husband can be imputed to the plaintiff in the principal case, she is properly barred. But negligence can ordinarily be imputed only with agency or, as some courts add, such an identity of interest as certain family relations create. See Little v. Hackett, 116 U. S. 366, 371. Now the marital relation does not create an agency to take care of the children. Macdonald v. O'Reilly, 45 Ore. 589, 78 Pac. 753. Again, the wife's estate has become under the modern law so distinct from that of her husband that to-day the identity of interest on which the imputation was rested no longer exists. Louisville, etc. Co. v. Creek, 130 Ind. 139, 29 N. E. 481. See Phillips v. Denver City Tramway Co., 53 Col. 458, 468, 128 Pac. 460, 464. Hence, especially when, as in the principal case, all chance of the action being a roundabout recovery by the husband, is destroyed by his death, it seems unfortunate that his negligence should be imputed to his innocent wife.

CRIMINAL LAW CONSPIRACY — PARTICIPATION OF DETECTIVES. The defendants were indicted under U. S. COMP. STATS. 1913, § 10201, for conspiring to bring Chinese into the United States unlawfully. Government detectives had suggested and urged the conspiracy, promising governmental protection, in order to place the principal defendant in a position where to avoid prosecution he could be forced to disclose the suspected criminal acts of other Chinese. Held, that a conviction is improper. Woo Wai v. United States, 223 Fed. 412 (C. C. A., 9th Circ.).

An attempt to commit a crime is indictable even though it was impossible to consummate the crime because of an unknown circumstance. Commonwealth v. Kennedy, 170 Mass. 18, 48 N. E. 770; People v. Gardner, 144 N. Y. 119, 38 N. E. 1003. See CLARK, CRIMINAL LAW, 2 ed., 130; Beale, "Criminal Attempts," 16 HARV. L. REV. 491, 496. In this respect a statutory conspiracy to commit a crime seems analogous to an attempt. Thus the acts of the defendant in the principal case are clearly an indictable offence. But the trend of authority seems to be toward allowing the defendant, in a case where the crime is first suggested and planned by a government agent, to set that fact up as a bar to conviction. Woodworth v. State, 20 Tex. App. 375. See United States v. Adams, 59 Fed. 674, 676. See 18 HARV. L. REV. 65. However, it is submitted that instigation and encouragement by a detective cannot excuse a defendant who has committed an offence against the state. If it is desired to put a wholesome check on the unfortunate practices of unscrupulous detectives, it is better to forbid such practices by statute rather than to entertain a doctrine that would permit a man to commit murder with impunity provided the act were suggested and encouraged by a detective.

DIVORCE ALIMONY RIGHT OF PERSONAL REPRESENTATIVE OF DECEASED WIFE TO RECOVER FOR ARREARS. - In an action for arrears of alimony against the estate of her deceased husband, the widow died at the determination of the appeal in the Appellate Division. Held, that her executor may be substituted in her place. Van Ness v. Ransom, 109 N. E. 593 (N. Y.).

Alimony represents in concrete form the husband's duty to support his wife. Originally it was allowed only in cases of divorce a mensa et thoro, since a divorce a vinculis was never granted except for causes arising before the

marriage. See Miller v. Clark, 23 Ind. 370, 376. As the marriage relation still exists after the wife's death, even arrears of alimony are not collectible, for they then belong to her husband. Stones v. Cooke, 8 Sim. 321 n. Cf. Clark v. Clark, 6 W. & S. (Pa.) 85. However, the wife's personal representative might recover for the benefit of her creditors for necessaries. Clark v. Clark, supra; Bouslough v. Bouslough, 68 Pa. St. 495. Again, when the amount is settled by the court and is due, the wife has no longer merely a right to alimony but something very closely resembling a judgment debt. Gerrein's Adm'r v. Michie, 122 Ky. 250, 91 S. W. 252; Howard v. Howard, 15 Mass. 196. See Coffman v. Finney, 65 Oh. St. 61, 61 N. E. 155. Cf. Carr v. Risher, 119 N. Y. 117, 23 N. E. 296. Then, however, it is treated as a personal right in that it is neither assignable, attachable, nor subject to a lien. Fournier v. Clutton, 146 Mich. 298, 109 N. W. 425; Lynde v. Lynde, 64 N. J. Eq. 736, 52 Atl. 694; Romaine v. Chauncey, 129 N. Y. 566, 29 N. E. 826; West v. Washburn, 153 N. Y. App. Div. 460, 138 N. Y. Supp. 230; Matter of Bolles, 78 N. Y. App. Div. 180, 79 N. Y. Supp. 530. But the principal case is in accord with the weight of American authority in holding that a decree for alimony is personal only in the sense that the wife cannot divert it to other uses than for her maintenance. Miller v. Clark, supra; Gerrein's Adm'r v. Michie, supra. See Dinet v. Eigenmann, 80 Ill. 274, 279; Coffman v. Finney, supra. Contra, Faversham v. Faversham, 161 N. Y. App. Div. 521, 146 N. Y. Supp. 569.

--

EQUITY WASTE RIGHT OF HOLDER OF INTERESSE TERMINI TO PROTECTION BY INJUNCTION. — The owner of an interesse termini brought a bill in equity to restrain the vacating tenant from removing a garage on the leased premises. Held, that an injunction will be granted. Evans v. Prince's Bay Oyster Co., 154 N. Y. Supp. 279.

The common-law action of waste was available only to the immediate estate of inheritance, and an action on the case in the nature of waste might be brought by the reversioner or remainderman for life or years. Note to Greene v. Cole, 2 Wms. Saunders 252 a; but see AMES, CASES ON EQUITY, 468 n. 1. But relief by injunction is of much wider application, equity having protected such remote interests as contingent remainders, estates of trustees to preserve contingent interests, interests of infants en ventre sa mère, executory devises, and future charges on realty. Watson v. Wolff-Goldman R. Co., 95 Ark. 18, 128 S. W. 581; Gordon v. Lowther, 75 N. C. 193; Williams v. Duke of Bolton, 3 P. Wms. 268 n.; Lutterel's Case, Prec. in Ch. 50; Robinson v. Litton, 3 Atk. 209; Turner v. Wright, 2 DeG. F. & J. 234; Dawson v. Tremaine, 93 Mich. 320. And even the inchoate right of dower has been protected. Brown v. Brown, 94 S. C. 492, 78 S. E. 447. Contra, Rumsey v. Sullivan, 150 N. Y. Supp. 287. See 28 HARV. L. REV. 615. Hence the court seems fully justified in protecting such a substantial interest as that held by an incoming tenant. Palmer v. Young, 108 Ill. App. 252.

EVIDENCE - LEGISLATIVE RECORDS - ADMISSIBILITY OF PAROL EVIDENCE TO CONTRADICT THE RECORD. In a petition for a mandamus to compel the publication of a certain bill, among the acts of the legislature, the plaintiff offered oral evidence to prove that before the governor vetoed the bill, he signed it with intent to approve it. Held, that the evidence is not admissible. Arkansas State Fair Association v. Hodges, 178 S. W. 936 (Ark.).

As parol evidence as to legislative proceedings is untrustworthy, and as it is essential that the validity and wording of statutes be absolutely certain, it is a general rule that in an action concerning a statute, parol evidence is not admissible to contradict the record. Attorney-General v. Rice, 64 Mich. 385, 31 N. W. 203; Wade v. Atlantic Lumber Co., 51 Fla. 638, 41 So. 72; State v. Armour Packing Co., 135 N. C. 62, 47 S. E. 411. See 2 WIGMORE, EVIDENCE, $1350 (3). However, when a bill has left the legislature, as it is dealt with

wholly in private and by individuals, the argument as to the untrustworthy nature of parol evidence fails. Again, there are not the safeguards against fraud and mistake which the very number of the legislature affords, while the chances of mishandling are greatly increased. Hence it is submitted that the public policy in favor of stability is overborne by the desirability of making it possible to remedy a negligent or fraudulent thwarting of the legislative will by individuals beyond the supervision of that body. Still the weight of authority supports the principal case. Weeks v. Smith, 81 Me. 538, 18 Atl. 325. See People v. McCullough, 210 Ill. 488, 510, 71 N. E. 602, 609.

EVIDENCE TESTIMONY GIVEN AT FORMER TRIAL ADMISSIBILITY AFTER MARRIAGE OF WITNESS WITH DEFENDANT. - In a trial for manslaughter, the former testimony of a woman who since the first trial had been disqualified by marriage with the defendant, was excluded. Held, that the exclusion was correct. Langham v. State, 68 So. 504 (Ala.)

As a general rule, former testimony is admissible as an exception to the Hearsay Rule when it has become unfeasible to secure the presence in court of the witness. People v. Elliott, 172 N. Y. 146, 64 N. E. 837; State v. Wheat, 111 La. 860, 35 So. 955; United States v. Reynolds, 1 Utah 319, 98 U. S. 145. The principle of this exception would make former testimony admissible in all cases where the witness, although capable of attendance in court, has been rendered incompetent, unless the incompetence were of such a nature as to cast suspicion upon the former testimony, e. g., conviction for an infamous crime. See 2 WIGMORE, EVIDENCE, § 1402. Cf. Le Baron v. Crombie, 14 Mass. 233. As yet, the principle has only been applied when the incompetence is for interest or mental incapacity. Wafer v. Hemken, 9 Rob. (La.) 203. See Walkup v. Commonwealth, 14 Ky. L. R. 337, 338, 20 S. W. 221, 222. See 2 WIGMORE, EVIDENCE, §§ 1408, 1409. Cf. Gold v. Eddy, 1 Mass. 1. Nevertheless, where the absence or incompetence has been caused by the proponent, the former testimony should be excluded on account of the danger of allowing the proponent to substitute it for direct evidence. When, however, the act of the proponent is as free from the suspicion of ulterior motives as marriage, this danger seems negligible and an inadequate ground for refusing the former testimony.

INJUNCTION - ACTS ENJOINED INTEREST OF PERSONALITY CREATED BY STATUTE EXCLUSIVENESS OF STATUTORY REMEDY. Plaintiff, a dramatic critic in New York City, was excluded from defendant's theaters, and threatened with future exclusion, on the ground of unfair criticism. A New York statute provides that all persons are entitled to equal accommodations in theaters and other places of amusement, and makes discrimination by theater managers a misdemeanor, further providing that a party aggrieved may have a civil action to recover a penalty. Plaintiff asked that defendant be enjoined from violating this statute. Held, that an injunction will not be granted. Woollcott v. Shubert, 154 N. Y. Supp. 643.

For a discussion of this case, see NOTES, p. 93.

INSURANCE - RE-INSURANCE LIABILITY OF RE-INSURER WHEN INSURER COMPROMISES. -The plaintiff, the insurer of a ship, re-insured the risk with the defendant. After loss, the plaintiff compromised with the shipowner for less than the insured value of the ship. He now sues the defendant for the full amount of the re-insurance policy. Held, that he can recover only the actual amount paid by him to the insured. British, etc. Ins. Co. v. Duder, 31 T. L. R. 361.

It is generally held that the re-insured can recover before any payment has been made to the insured, and that then subsequent events cannot alter his liability. Hone v. Mutual, etc. Ins. Co., 1 Sandf. (N. Y.) 137. In the light of this, courts have generally said that re-insurance is indemnity against the

liability as distinct from the loss of the re-insured, and have allowed a recovery by the re-insured of an amount in excess of that paid by him to the insured. Allemania Ins. Co. v. Fireman's Ins. Co., 209 U. S. 326, 332. See British, etc. Ins. Co. v. Duder, [1914] 3 K. B. 835, 839 (overruled by the principal case). This result is almost universally adopted in case the re-insured becomes insolvent. See 28 HARV. L. REV. 302. Many courts and writers, reasoning from these cases, support a recovery in excess of indemnity paid when the reinsured is solvent. Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443; Cass County v. Mercantile, etc. Ins. Co., 188 Mo. 1; Grant v. American Central Ins. Co., 68 Mo. 503. See ARNOULD, MARINE INSURANCE, 9 ed., 323. Such a result enables the re-insured to make a profit, an idea abhorrent to the fundamental conception of insurance law that the contract is one of indemnity only, and in this respect re-insurance is the same as primitive insurance. See PORTER, INSURANCE, 3 ed., 259; ARNOULD, MARINE INSURANCE, 9 ed., 323. Nor is there, as in the case of insolvency, any danger of a multiplicity of suits. See 28 HARV. L. REV. 302; 15 id. 866; Philadelphia, etc. Ins. Co. v. Fame Ins. Co., 9 Phila. 292. But even the courts which have adopted the result of the principal case have failed to observe the distinction created by insolvency and have apparently believed that the result was contrary to the great weight of authority. Illinois, etc. Ins. Co. v. Andes Ins. Co., 67 Ill. 362; Ins. Co. v. Ins. Co., 38 Oh. St. 11; Delaware Ins. Co. v. Quaker City Ins. Co., 3 Grant (Pa.) 71.

JUDGES · DISQUALIFICATION PECUNIARY INTEREST SUBORDINATION OF THE RULE TO NECESSITY. A judge of a state Supreme Court brings a writ in that court for a mandamus to compel the state auditor to issue a warrant for fifty dollars in pursuance of a state statute providing that where a judge of the Supreme Court changed his residence to the state capital, he should be paid fifty dollars per month additional, in consideration of increased expenses. The auditor objected that, as the judges of the Supreme Court were pecuniarily interested, they were disqualified from participating in the proceedings. Held, that the court had power to grant the writ. McCoy v. Handlin, 153 N. W. 361 (S. D.).

The power and efficiency of any judicial system depend upon its freedom from all suspicion of bias or partisanship. Thus in general a vested pecuniary interest disqualifies a judge from sitting on a case. Dimes v. Grand Junction Canal, 3 H. L. Cas. 759; Ex parte Cornwell, 144 Ala. 497, 39 So. 354; City of Grafton v. Holt, 58 W. Va. 182, 52 S. E. 21. But as a strong public policy demands that every cause should have a trial, when the interested judge alone has jurisdiction to try the case, if his pecuniary interest is slight it is clear that he may sit. Matter of Ryers, 72 N. Y. 1; Hill v. Wells, 6 Pick. (Mass.) 104; Commonwealth v. Emery, II Cush. (Mass.) 406. Even where the interest is large, if indirect it has been held that a judge may participate in the proceedings. State v. Polley, 34 S. D. 565, 138 N. W. 300. But where the interest is large and direct, there is no settled authority. Where the exclusive jurisdiction is given by the constitution, it is difficult to refuse jurisdiction. See Matter of Leefe, 2 Barb. (N. Y.) 39, 40. But even if the exclusive jurisdiction is solely the result of statute, it is submitted that the character and extent of the interest should not affect the rule. In the conflict of policies which this situation involves, the considerations in favor of having someone to hear every cause outweigh in all cases the considerations against allowing an interested judge to act.

JURISPRUDENCE REVERSAL OF JUDICIAL DECISION - CRIMINAL LIABILITY FOR ACT DECLARED INNOCENT BY DECISION SUBSEQUENTLY OVER- The defendant as officer of a bank received a deposit, having good reason to believe the bank insolvent. The highest court of the state had previously held that such an act did not fall within a criminal statute. The court

RULED.