reasonable. Savage v. Savings Ass'n, 45 W. Va. 275, 31 S. E. 991; Nute v. Hamilton Mut. Ins. Co., 6 Gray (Mass.) 174. But cf. Greve v. Aetna Live Stock Ins. Co., 81 Hun 28, 30 N. Y. Supp. 668. Clearly this principle renders general arbitration agreements ineffectual to oust the courts of jurisdiction, however unfortunate it may be to discourage the settlement of disputes out of court. See I PAGE, CONTRACTS, § 348. But where the contract calls for performance of a duty to be fixed by arbitration, the clause is valid, as arbitration is then a condition precedent to any cause of action at all. Hamilton v. Ins. Co., 136 U. S. 242. See A. C. Burnham, "Arbitration as a Condition Precedent," II HARV. L. REV. 234. Mere words, however, will not make it a condition precedent when the arbitration serves not to define the duty but to determine its infringement. See Meacham v. Jamestown, F. & C. R. Co., 211 N. Y. 346, 352, 105 N. E. 653, 655. In Massachusetts, the doctrine of Nute v. Hamilton Mut. Ins. Co., supra, invalidating territorial limitations on suit, had been seriously undermined. Mittenthal v. Mascagni, 183 Mass. 19, 66 N. E. 425; Daley v. People's Bldg., etc. Ass'n, 178 Mass. 13, 59 N. E. 452. The present case, however, brings Massachusetts once more into harmony with the generally accepted doctrine.

INSURANCE - EMPLOYER'S LIABILITY INSURANCE - LIABILITY OF INSURER BEFORE PAYMENT BY EMPLOYER. — An employer took out insurance against losses resulting from injuries to employees. In a suit defended by the insurance company the plaintiff recovered a judgment against the employer for death of her husband. As the employer was totally insolvent, the plaintiff took an assignment of the policy and now sues the company, admitting that the policy is for reimbursement only. Held, that she may recover. Davies v. Maryland Casualty Co., 154 Pac. 1116 (Wash.).

When, as in the principal case, the policy is indisputably an agreement merely to reimburse the employer for losses actually suffered and not to exonerate him from liability, a payment by the employer is a condition precedent to a right of action on the policy which his insolvency makes impossible of performance. Frye v. Bath Gas & Electric Co., 97 Me. 241, 54 Atl. 395; Cushman v. Carbondale Fuel Co., 122 Iowa, 656, 98 N. W. 509. See Puget Sound Imp. Co. v. Frankfort Marine, etc. Co., 52 Wash. 124, 131, 100 Pac. 190, 193. A feeling of sympathy for the employee, however, has led to a tendency to construe the policy as one for exoneration, whenever possible. Thus, when the policy provides that the insurer shall defend suits against the employer, express provisions that the policy is for reimbursement of actual loss have been held to apply only to liability incurred without suit, on the theory that such action is inconsistent with a mere agreement to reimburse. Sanders v. Frankfort, etc. Co., 72 N. H. 485, 57 Atl. 655; cf. Campbell v. Maryland Casualty Co., 52 Ind. App. 228, 97 N. E. 1026. But if, as in the principal case, the policy is construed as one for reimbursement only, it is difficult to see how the mere fact that the insurer attempts to protect his contingent liability by defending the suit can estop him from asserting the existence of this condition precedent. Carter v. Ætna Life, etc. Co., 96 Kan. 275, 91 Pac. 178. A more difficult question arises when the employer is not totally insolvent, but is bankrupt and paying a dividend. Logically, the employee should be given his dividend along with the other creditors, the amount paid to him should be collected from the insurance company, a dividend in this should be given to the employee, and this process of payment and collection continued indefinitely. Cf. Royal Bank of Scotland v. Commercial Bank of Scotland, 7 A. C. 366. But to perform this infinite series of transactions would be impossibly cumbersome, while to compute the result and assess compensation from the insurance company for all these sums at a single transaction would involve the logical inconsistency of forcing indemnity at a time when the employer could not have paid the whole amount assessed. An Amer

ican court, recognizing these difficulties, has applied a rule of thumb by which the employee may recover from the insurer as great a percentage of his judgment as is given to the other creditors out of the remaining assets of the employer. Moses v. Traveller's Ins. Co., 63 N. J. Eq. 260, 49 Atl. 720. See 18 HARV. L. REV. 154; 59 CENT. L. JOUR. 5. Since this involves no greater inconsistency, and reaches practically the same result, it seems preferable.

INTERSTATE COMMERCE - DISCRIMINATION AGAINST SHIP BROKERS - ExCLUSIVE STORAGE FACILITIES ON A CARRIER'S WHARF. A railroad, which, by owning a wharf connecting with ocean freight carriers was able to issue through bills of lading, granted the exclusive storage facilities on the wharf for "parcel' freight, to a ship broker, but gave equal facilities to all for "full-cargo" shipments. The plaintiff, another ship broker, sues to recover damages for this discrimination. Held, that he may not recover. Gulf, etc. R. Co. v. Buddendorff, 70 So. 704 (Miss.).

Despite the general statutory and common-law prohibitions against discrimination, public carriers have been allowed discretionary power in the assignments of certain of their facilities. Audenried v. Philadelphia & Reading R. Co., 68 Pa. St. 370. Thus the grant of exclusive carriage privileges at a station has been upheld by the courts. Donovan v. Pennsylvania Co., 199 U. S. 279, 296; Ex parte Painter, 2 C. B. (N. S.) 702. And there is considerable authority sustaining a railroad in its assignment of exclusive privileges to an express company. Express Cases, 117 U. S. 1, 29; Atlantic Express Co. v. Wilmington, etc. R. Co., III N. C. 463, 16 S. E. 393. These cases, however, rest in part on the ground that a railroad is a common carrier of freight and not of parcels sent under special supervision. See Sargent v. Boston & Lowell R. Co., 115 Mass. 416, 422. The discrimination made in the principal case as to storage facilities for "parcel shipment" only, would seem to be within this reasoning. But the general current of authority is contrary to the argument of the Express Cases. Pickford v. Grand Junction R. Co., 10 M. & W. 399; McDuffee v. Portland & Rochester R. Co., 52 N. H. 430. It would seem as if the true basis of the Express Cases must be the public welfare balanced against individual discrimination. See Sandford v. Catawissa, etc. R. Co., 24 Pa. St. 378, 382. The extremes between which variation in the right of discrimination is possible seem to have one limit in the cases holding that competing carriers have no right to each other's wharves. Weems v. People's Steamboat Co., 214 U. S. 345. The other limit is determined by the cases denying a carrier's right to discriminate between patrons, even though one's business is very large. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498.

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS- CONSCIOUS VIOLATION OF A STATUTE AS "WILFUL MISCONDUCT." — An employee was killed by an accident in the course of and arising out of his business while driving an automobile at an illegal rate of speed. The statute refuses compensation if the "wilful misconduct" of the employee was a proximate cause of the accident (1911-1913 CALIFORNIA LAWS, CONSOLIDATED SUPP., p. 1420). Compensation was awarded his widow. Held, that the award be set aside. Fidelity and Deposit Co. v. Industrial Accident Commission, 154 Pac. 834 (Cal.)

In several of the United States recovery under the workmen's compensation acts is refused if the accident is attributable to the "wilful misconduct" of the workman. See I BRADBURY'S WORKMAN'S COMPENSATION, 2 ed., 518. If the misconduct contemplated by these statutes is solely a wrong to the employer and his business, it is clear that the mere violation of a statute is not necessarily misconduct, as the employer might have acquiesced in the violation. See

George v. Glasgow Coal Co., [1909] A. C. 123, 129. But if it means negligence from the point of view of the state, the breach of a statute would, by the best authority, be conclusive. See E. R. Thayer, "Private Wrong and Public Action," 27 HARV. L. REV. 317, 321-26. However, in either event, the subjective element of conscious wrong required by the word "wilful" is not necessarily present in every violation of a statute. See TERRY, ANGLO-AMERICAN LAW, §§ 216-17. See contra, Dobson v. The United Collieries, 43 Scot. L. R. 260, 264. For the fiction that everyone always knows the law is of no aid in a search for a subjective reality. But if the workman was aware of the statute and deliberately broke it without sufficient excuse from his employer, his act would necessarily be both "wilful" and "misconduct." Cf. Great Western Power Co. v. Pillsbury, 149 Pac. 35 (Cal.) In the principal case, as such appear to have been the facts, the decision, under the California law, would seem to be correct. But the problem is further complicated by a question of degree in the various jurisdictions which limit the exception to "serious" as well as "wilful misconduct." Nickerson's Case, 218 Mass. 158, 105 N. E. 604; Casey v. Humphries, 6 B. W. C. C. 520; Mitchell v. Whitton, 44 Scot. L. R. 955; Johnson v. Marshall, etc. Co., [1906] A. C. 409.

INTERESTS OF PUBLIC TASTE

POLICE POWER BILLBOARD AND BUILDING REGULATIONS. A statute empowered the Collector of Internal Revenue to remove "any sign, sign board or billboard, displayed or exposed to public view which is offensive to the sight or otherwise a nuisance." PHIL. ACT No. 2339, § 100, subsection 5. A bill was brought to enjoin the enforcement of this statute. Held, that it is constitutional. Churchill v. Rafferty, 14 Phil. Gaz. 383 (Phil. Sup. Ct.).

An ordinance was passed forbidding the erection of unsightly extensions on residence streets without a permit. The plaintiff was refused a permit, and sues to have the decision reviewed. Held, that the ordinance is unconstitutional. Lavery v. Board of Commissioners, 96 Atl. 292 (N. J. Sup. Ct.). For a discussion of these cases, see NOTES, p. 860.

MISDIRECTION.

PROCESS VALIDITY AND AMENDMENT The defendant was properly served by the sheriff of his own county with process directed to the sheriff of another county. Held, that the process is voided by the misdirection and cannot be amended so as to validate the judgment obtained on it. Caldwell v. Alexander Seed Co., 87 S. E. 843 (Ga. App.).

Some jurisdictions which hold that a defective direction invalidates process, have refused to allow any later amendment of the process return on the theory that since the original process is wholly void there is nothing to amend. Anthony v. Beebe, 7 Ark. 447; cf. Strauss Brothers v. Owens, 6 Ga. App. 415, 65 S. E. 161. This reasoning, however, would apply with equal force to defective pleadings which, it is generally conceded, may be amended, unless the amendments would change the cause of action or the defense to the substantial injury of the party opposing it. See PHILLIPS, CODE PLEADING, §§ 312, 313. Now the substantial requirements of process are formal notice of the action to the defendant, by the proper authorities and in due time. Any other elements to a process must be purely matters of form. As such, therefore, they should clearly be open to amendment, and the majority of courts have so held. Parker v. Barker, 43 N. H. 35; Chadwick & Co. v. Divol, 12 Vt. 499. See Mitchell v. Long, 74 Ga. 94, 97; cf. 5 PARKS, GA. CODE (1914), § 5709. One court has even decided that there need be no amendment; a process though improperly directed to a sheriff was held valid and binding when served by a constable, or any officer to whom it might properly have been directed. Hagan v. Stuart, 4 Ky. L. Rep. 834.

TRIAL

DICTS.

VERDICTS AFFIDAVITS OF JURORS TO SHOW "CHANCE" VERAn affidavit of nine jurors stated the following: The nine jurors were for the plaintiff and the others for the defendant. Differing on a proposition of law, they all agreed to ask for an additional instruction and to give their verdict according to the instruction. The instruction was favorable to the defendant, and a verdict was given for him. The nine would not have consented to this verdict but for the agreement. Held, that the affidavit may be received and that the verdict is invalid. Garden v. Moore, 156 N. W. 410 (Ia.).

Where it is shown that the jurors made and acted on an agreement to determine by chance the verdict or its amount, the verdict will be set aside. Houk v. Allen, 126 Ind. 568, 25 N. E. 897; Merseve v. Shine, 37 Ia. 253; City of Ottawa v. Gilliland, 63 Kan. 165, 65 Pac. 252. The objections to "chance" verdicts are that the agreement made bears no relation to the merits, and that the jurors feel precluded by the agreement from further consideration of the case. Where the jurors are divided because they differ as to a point of law, if they agree to follow, and do follow, the judge's instruction on this point, only the second objection would apply. This objection in itself, it is submitted, is not a sufficient reason for the court to assume the danger incident to disturbing the verdict. But if, as the court assumed in the principal case, the agreement of the jurors is to follow an instruction irrelevant to their disagreement, the verdict is a true chance" verdict. In most states, in the absence of a statute, affidavits of jurors are not admissible to show their own misconduct in rendering a verdict. McDonald, etc. v. Pless, 238 U. S. 264; Birmingham, etc. Co. v. Moore, 148 Ala. 115, 130, 42 So. 1024, 1029; Hull v. Larson, 14 Ariz. 492, 131 Pac. 668. Such statutes, however, are not infrequent in the case of quotient verdicts, while some states, including Iowa, have obtained the same result by decision. Wright v. The Illinois, etc. Tel. Co., 20 Ia. 195; Elledge v. Todd, 1 Humph. (Tenn.) 43. See DEERING, CODE CIV. PROC. CAL., § 657; REM. & BAL. CODE (Wash.), § 399.

RECOVERY AGAINST

TRUSTS RIGHTS AND LIABILITIES OF THIRD PARTIES TRUST ESTATES FOR SERVICES RENDERED THE TRUSTEE. - The beneficiaries of a trust estate brought a bill in equity for the removal of the trustee. The trustee, as such, engaged an attorney who successfully defended him. The attorney now seeks to recover for his services in an action against the trustee in his representative capacity. Held, that he cannot recover. Jessup v. Smith, 170 N. Y. App. Div. 605.

Except as expressly authorized by the instrument creating the trust, a trustee cannot give third persons with notice direct rights against the trust estate. See 2 PERRY ON TRUSTS, § 815 (b). However, in an accounting between the trustee and the cestui que trust, exoneration may be given the trustee for liabilities incurred under contracts which were proper, though not authorized. This right to exoneration, being an equitable asset of the trustee, may be reached by a bill against the trustee and cestui que trust. Fairland v. Percy, L. R. 3 P. & D. 217; Laible v. Ferry, 32 N. J. Eq. 791. See Merchants' Nat. Bank v. Weeks, 53 Vt. 115. But such remedy is secondary, and contingent upon the failure of the creditor's primary right against the trustee as an individual; for the adjudication of rights between the trustee and cestui que trust should come in their regular accounting, and not at the behest of any creditor. See L. D. Brandeis, "Liability of Trust Estates on Contracts made for their Benefit," 15 AM. L. REV. 449, 457. A few cases hold that there is a direct right against the trust estate founded on unjust enrichment, when the trustee is insolvent and the derivative right through him is valueless because of claims of the estate against him. Manderson's Appeal, 113 Pa. St. 631, 6 Atl. 893; Courier-Journal Job Printing Co. v. Columbia Fire Ins. Co., 54 S. W. 966 (Ky.) See A. W. Scott, "Liabilities in the Administration of Trusts," 28 HARV. L. REV. 725, 740. In

the principal case it did not appear that the estate had been enriched or that the creditor's primary right against the trustee as an individual would fail in any respect. The denial of a right against the trust estate on either ground was therefore proper.

TORTS LIABILITY OF A MAKER OR VENDOR OF A CHATTEL TO A THIRD PERSON INJURED BY ITS USE — LIABILITY FOR INJURY RESULTING FROM A DEFECTIVE AUTOMOBILE WHEEL. - The defendant, an automobile manufacturer, sold a car with a defective wheel to a dealer. The defendant did not make the wheel, but was negligent in inspecting it. The dealer resold to the plaintiff, who was injured as a result of the defect. For this injury, the plaintiff sues. Held, that he may recover. McPherson v. Buick Motor Co., 54 N. Y. L. J. 2339 (N. Y. Ct. of Appeals).

For a discussion of the principles involved, see NOTES, p. 866.

TORTS WILFUL INTERFERENCE WITH PLAINTIFF'S BUSINESS - JUSTIFICATION CHURCH INTERDICT AGAINST NEWSPAPER. The defendants, bishops of the Roman Catholic Church, published in a pastoral letter an interdict against the plaintiff's newspaper. The paper was condemned as "greatly injurious to the Catholic Faith and discipline," and all Catholics were forbidden to read, keep, or subscribe thereto, upon pain of committing sacrilege. The plaintiff now sues for damage to his business. Held, that he cannot recover. Kuryer Pub. Co. v. Messmer, 156 N. W. 948 (Wis.).

In dealing with the modern questions involved in the interference with trade relations, there is a growing tendency to approach the problem from the premise that all harm intentionally caused by active conduct is actionable unless justified. Walker v. Cronin, 107 Mass. 555, 562; Tuttle v. Buck, 107 Minn. 145, 149, 119 N. W. 946, 947. See POLLOCK, TORTS, 8 ed., 21. But there seems to be no well-settled legal principle as to what constitutes a justification. See Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077. In an effort to find a general rule, the courts have attempted to apply various formulæ. See Allen v. Flood, [1898] A. C. 1; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119. Perhaps the most rational of these justifies the intentional injury only if incidental to a legitimate business endeavor. National Protective Ass'n v. Cumming, 170 N. Y. 315, 63 N. E. 369; Keeble v. Hickeringill, 11 Mod. 74; Quinn v. Leathen, [1901] A. C. 495. But what is "legitimate" and "incidental"? It seems preferable to determine whether or not the interference is actionable primarily by the relative social utility of the success of the defendant's purpose on the one hand and the injury to the plaintiff's lawful business on the other, and not upon an attempt to justify, to interpret, or to apply such uncertain terms as "unmixed malice," "unlawful motive," or "conspiracy." Tuttle v. Buck, supra. See O. W. Holmes, “Privilege, Malice and Intent," 8 HARV. L. REV. 1, 8. The principal case presents essentially the same problem, and should be decided upon the same considerations; the public policy against judicial interference with essentially church matters should weigh in the balance. There is perhaps an analogy in the privilege accorded to church communication in the law of libel. See 29 HARV. L. REV. 561.