Chicago & N. W. Ry. Co., 36 Wis. 657; Goddard v. Grand Trunk Ry., 57 Me. 202. The principal case, then, would seem to be merely a further application of the recog nized doctrine.

CONSTITUTIONAL LAW-EMINENT DOMAIN - EASEMENTS OF LIGHT AND AIR - ELEVATED RAILROADS. — - A steam railroad company had acquired the right to run its trains through the street in front of the plaintiff's premises. In accordance with a legislative scheme for the improvement of the street, the railroad tracks were raised upon an elevated structure and the trains operated thereon. The plaintiff sued the railroad company for injury to his easements of light and air. Held, that he cannot Fries v. New York & H. R. R., 169 N. Y. 270. See NOTES, p. 665.

recover.

CONTRACTS

- PAST CONSIDERATION — IMPLIED PROMISE. — The plaintiff, at the defendant's request, supported the defendant's mother during an illness. Subsequently the defendant promised to pay the plaintiff for his services. Held, that a declaration based on this promise is good on demurrer. Montgomery v. Downey, 88 N. W. Rep. 810 (Ia.).

In early times it was thought that a promise was sufficiently supported by the consideration of a detriment already incurred by the promisee at the request of the promisor. Anon., cited in Hunt v. Bate, Dyer 272; Lampleigh v. Brathwaite, Hob. 105. While these cases have never been expressly overruled, they seem to have been entirely discredited by the rejection of the doctrine of past consideration. Cf. Hopkins v. Logan, 5 M. & W. 241. The old rule is still laid down by some textwriters and in dicta in various jurisdictions. See I PARSONS, CONTs., *469; Dearborn v. Bowman, 3 Met. (Mass.) 155, 158; contra, ANSON, CONTS., 9th ed., 102 et seq. It has influenced not only the principal case, but several other modern American decisions where the declaration was on the subsequent express promise. Pool v. Horner, 64 Md. 131; Stuht v. Sweesy, 48 Neb. 767. In most of these cases, however, the subsequent promise was coextensive with the promise which the facts would imply, and in all, it is believed, a quantum meruit would have been supported. In such cases practically the same result would be achieved by the modern doctrine of implied promises, and so the survival of the old principle seems to affect only the form of the declaration and in some cases, perhaps, the amount of damages awarded. See Ex parte Ford, 16 Q. B. D. 305, 307.

CORPORATIONS-BY-LAWS-DIVERSION OF MORTUARY FUND INTO HANDS OF MEMBERS. In pursuance of a charter amendment, the defendant corporation passed a by-law providing for assessments from time to time to make up a mortuary fund to be paid to widows and children of deceased members. Later a new by-law was passed modifying the system and providing, inter alia, for the distribution of the accumu. lated fund among the subscribing members. Held, that the new by-law is invalid. Parish v. New York Produce Exchange, 169 N. Y. 34.

The authorities on this subject are in hopeless conflict and confusion. See BOISOT, BY-LAWS, §§ 118-131. All by-laws must be reasonable and within the chartered pow. ers of the corporation, but beyond this it is well-nigh impossible to lay down any definite principles. Vested rights cannot be impaired, but the cases differ wid iy as to what constitutes a vested right. See Stohr v. San Francisco Musical Fund Society, 82 Cal. 557. The interest of each member in the mortuary fund is acquired with reference to the charter and by-laws of the corporation, and the latter are naturally subject to considerable modification by by-laws later passed in the way of amendment. See Pain v. Société St. Jean Baptiste, 172 Mass. 319; but cf. Becker v. Berlin Beneficial Society, 144 Pa. St. 232. The subscribing members, however, clearly acquire some rights in the fund, and their interest, though a limited one, entitles them to insist that the fund be kept within the general scope of the purpose for which it was collected and not otherwise disposed of or diverted into new channels. Cf. Lloyd v. Supreme Lodge K. of P., 98 Fed. Rep. 66; Bergman v. St. Paul Mut. Bldg. Assoc., 29 Minn. 275. A sweeping amendment like the one in question seems therefore sufficient to give a right of action.

CORPORATIONS— CONSOLIDATION

TRANSFER OF ENTIRE PROPERTY TO ANOTHER CORPORATION - RIGHTS OF CREDITORS. Held, that a corporation formed by consolidation is liable at law for the debts of each constituent corporation, at least to the extent of the assets received. Morrison v. American Snuff Co., 30 So. Rep. 723 (Miss.).

All the property of one corporation was transferred to another, which took with notice of certain liabilities of the former corporation. Held, that the property is chargeable in equity for those liabilities. Vicksburg, etc., Co. v. Citizens', etc., Co., 30 So. Rep. 725 (Miss.).

When one corporation transfers all its property to another distinct corporation, and in consideration therefor the shareholders of the first are made members of the second, creditors of the first are in almost every jurisdiction given, both in equity and at law, relief against the second, and this, too, in the absence of statute or express agreement between the corporations. Harrison v. Arkansas Valley Ry. Co., 4 McCrary (U. S. Circ. Ct.) 264; Cleveland, etc., Ry. Co. v. Prewitt, 134 Ind. 557; see 14 HARV. L. REV. 531. The grounds for relief are generally, however, not satisfactorily developed. When fraudulent as to creditors the conveyance may, of course, be set aside. Hurd v. New York, etc., Co., 167 N. Y. 89. But usually, it would seem, the intention is that the second corporation shall assume the debts of the first. Then equitable relief may be justified on the ground that the assets of the first corporation are to be considered as transferred with the obligation attached, so that the second corporation holds them subject to a trust for creditors; or an action at law may be based on a promise to assume the debts, implied in the agreement between the corporations, the creditors being allowed to sue as beneficiaries on the principle of Lawrence v. Fox, 20 N. Y. 268. Consistently with this latter suggestion, the creditor's right at law against the second corporation has been denied in Massachusetts, where Lawrence v. Fox, supra, is not followed. Ewing v. Composite, etc., Co., 169 Mass. 72.

CORPORATIONS- VOIDABILITY OF CONTRACTS IN WHICH DIRECTORS OR OFFICERS HAVE A SPECIAL INTEREST. - Corporation A, acting through its general manager, who was also largely interested in corporation B, made a series of contracts with the latter corporation. The court found that the contracts were fair. Held, that they will not be set aside at the suit of corporation A. Aldine Mfg. Co. v. Phil lips, 88 N. W. Rep. 632 (Mich.).

The rule is well settled that one acting for another in a fiduciary capacity cannot make a valid contract where he has a substantial interest conflicting with his duties. See New York, etc., Co. v. National, etc., Co., 14 N. Y. 85, 91. When the directors of a corporation make a contract in which some of them have a special interest, that individual interest is almost always to some extent opposed to the duty of the directors acting as a board. A few cases accordingly allow the corporation to avoid the contract, without regard to the number of interested directors. Aberdeen Ry. Co. v. Blaikie, 1 Macq. 461. But many courts are not anxious to hamper all dealings between corporations having some directors in common, and will not generally set aside a fair contract when the directors in common form a minority, and the adverse interest is consequently of less effect. See Jesup v. Illinois Central R. R. Co., 43 Fed. Rep. 483; United States, etc., Co. v. Atlantic, etc., R. R. Co., 34 Oh. St. 450. When, however, as in the principal case, the contract is made by a single officer or other agent of the corporation, having a special interest, it is clearly voidable according to the general rule and the decisions in point. Greenwood, etc., Co. v. Georgia., etc., Co., 72 Miss. 46.

CRIMINAL LAW FORMER JEOPARDY — MUNICIPAL ORDINANCE AND STATE STATUTE. The defendant, having been convicted and fined for violation of a city ordinance against gambling, was indicted for the same act as a violation of a state statute. Held, that a plea of former jeopardy is without merit, the prosecution under the ordinance being in the nature of a civil proceeding. State v. Muir, 65 S. W. Rep. 285 (Mo.). See NOTES, p. 660.

CRIMINAL LAW· SOLICITATION - ATTEMPT - JURISDICTION. - The prisoner wrote in London a letter to B in Johannesburg, soliciting murder. There was no evidence of the receipt of the letter. He was indicted under 24 & 25 Vict., c. 100, § 4, which makes it a misdemeanor to "solicit, encourage, persuade, or endeavor to persuade," or to "propose to " another to commit murder. There were counts for the substantive offence, and also for an attempt. Held, that the jury may convict on the latter counts, but to sustain the former there must be evidence of communication. Rex v. Krause, 18 T. L. R. 238 (Cent. Crim. Ct.).

The decision that the solicitation was incomplete seems correct. Regina v. Fox, 19 W. R. 109 (Ir.). The court allowed the counts for attempt on the assumption, probably. that the complete offence would be indictable in England. It would seem,

however, that the criminal act in such cases is the communication, which would have been in another jurisdiction, and that, consequently, any indictment must have been brought there. This view is supported by at least one class of cases, - where forgeries are uttered by mail. Lindsey v. State, 38 Oh. St. 507. But the contrary might be held on analogy to cases of libel by mail, where the jurisdiction is concurrent. Rex v. Burdett, 4 B. & Ald. 95. If the completed offence would have been cognizable only abroad, a question arises as to indicting the attempt in England. It would seem that acts sufficient in themselves to constitute an attempt, done in pursuance of a criminal end, are properly indictable where done, even though the offence when completed would be against another sovereignty. Such was the holding in the only case found where the point has been decided. State v. Terry, 109 Mo. 601. Cases of accessory in another jurisdiction, and of conspiracy to commit crime abroad, lead by analogy to the same conclusion. State v. Chapin, 17 Ark. 561; People v. Arnold, 46 Mich. 268.

DAMAGES-CONTRACT OF SERVICE - SERVANT WORKING FOR HIMSELF after DISMISSAL. The plaintiff, a plantation foreman, was under contract with the defendant for a year at $500. Having been wrongfully discharged, he leased a farm and managed it during the rest of the year, making $100. Held, that the measure of damages in an action on the contract is the contract price, decreased by the amount that the plaintiff must have paid another to do the work which he did on the leased farm. Lee v. Hampton, 30 So. Rep. 721 (Miss.). See NOTES, p. 662.

DAMAGES-MITIGATION ASSAULT AND BATTERY-PROVOCATION. — In an action for assault and battery the defendant offered to prove in mitigation of damages threats made by the plaintiff. Held, that the evidence is inadmissible. Mangold v. Oft, 88 N. W. Rep. 507 (Neb.).

The decision goes on the ground that the threats, if proved, would have no legiti mate bearing on the case. It is almost universally agreed that evidence of threats or provocation is admissible in mitigation of exemplary damages. Corcoran v. Harran, 55 Wis. 120. But some jurisdictions refuse to allow such evidence to mitigate compensatory damages, on the ground that to do so would virtually be to allow it to be used as a defence to the action. Scott v. Fleming, 16 Ill. App. 539; Prentiss v. Shaw, 56 Me. 427. It would seem, however, that evidence of this nature has a direct bearing on the actual damage; for, if the plaintiff provoked the assault, there is naturally less outrage and injury to his feelings than if he had been entirely blameless in the matter, and consequently his actual damage is less. In accordance with this view many jurisdictions admit the evidence in mitigation of both exemplary and compensatory damages. Parker v. Coture, 63 Vt. 155; Robison v. Rupert, 23 Pa. St. 523. It must always appear, of course, that the assault was committed under the immediate influence of the provocation. Keiser v. Smith, 71 Ala. 481.

EVIDENCE ADMISSIBILITY VERDICT OF CORONER'S JURY.—At a trial for murder, the prosecution introduced as evidence the verdict of the coroner's jury that the defendant had killed the deceased, and that “said killing was in our opinion, a coldblooded murder." Held, that the evidence was incompetent. Colquit v. State, 64 S. W. Rep. 713 (Tenn., Sup. Ct.). See NOTES, p. 663.

EVIDENCE DECLARATIONS AS TO BOUNDARY MADE POST LITEM MOTAM. At a trial of a boundary dispute, proof was offered of declarations as to the location of the boundary, which were made by an old resident in the neighborhood, since deceased. The declarations were made after the dispute arose. Held, that the evidence was properly rejected. Hamilton v. Smith, 50 Atl. Rep. 884 (Conn.).

The admission of pedigree and public interest declarations manifests the ancient practice of proving certain facts by hearsay traditional in the family or community. The American practice, recognized in the principal case, of admitting declarations as to private boundary, had the same origin. THAYER, CAS. Ev., 2nd ed., 418, 419; Higley v. Bidwell, 9 Conn. 446. In accordance with a decision rendered a century ago, pedigree declarations are inadmissible if made after the controversy which is before the court arose, the declarant being considered as probably voicing then his individual opinion rather than family reputation, or perhaps as collusively making evidence. Berkeley Peerage Case, 4 Camp. 401. A similar decision as to public interest declarations followed immediately. Rex v. Cotton, 3 Camp. 444. The rule in the principal case follows not unnaturally. Generally, however, declarants as to private boundaries

must have been disinterested, and in many jurisdictions specially informed. Porter v. Warner, 2 Root (Conn.) 22; Clements v. Kyles, 13 Grat. (Va.) 468, 478. These restrictions, treating the declarant rather as an unsworn witness, testifying of his own knowledge, involve an abandonment of the old conception of him as the mouthpiece of tradition. See Moseley v. Davies, 11 Price 162, 167, 174. These methods of insuring genuineness might be considered complete substitutes for the ante litem motam condition; but they have not been so considered, and one decision and many dieta sup. port the principal case. Den v. Sugg, 2 Dev. & Bat. (N. C.) 515.

VORCE.

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EVIDENCE HUSBAND AND WIFE - COMPETENCY AS WITNESSES AFTER DI The defendant in the presence of his wife committed an assault on one G. Held, that the wife after divorce can testify against him. Commonwealth v. Leisey, 59 Leg. Intel. 48 (Pa. Dist. Ct.).

In general the incapacity of husbands and wives to be witnesses for or against each other is terminated by death or divorce. Public policy obviously requires, however, that it continue in some measure as to matters which occurred during the marriage. In England the prohibition lasts as to all which took place during the coverture and to which the wife could not have testified at the time. O'Connor v. Marjoribanks, 4 Man. & G. 435. The American cases show a wide variation, but the most common statement is that the wife remains incompetent against her husband as to knowledge obtained through the confidence of the marriage relation. Walker v. Sanborn, 46 Me. 470; Babcock v. Booth, 2 Hill (N. Y.) 181. The incompetency has been generally extended to matters such as that in the principal case, affecting the character of the former husband, either as coming under the rule last stated or as a separate class. State v. Jolly, 3 Dev. & Bat. (N. C.) 110; cf. French v. Ware, 65 Vt. 338; contra, Chamberlain v. People, 23 N. Y. 85. It is sufficiently probable that the wife's prejudicial knowledge of such matters was allowed to reach her in that confidence which the law protects, to make the application of an absolute rule of incompetency seem on the whole wise and just.

INSURANCE POLICY TAKEN OUT BY INSUred - ResulTING TRUST. The insured took out a life insurance policy for the benefit of one to whom he was not related, payable to her, her executors, administrators, and assigns. The insured died after the beneficiary. Held, that the representatives of the beneficiary are entitled to receive the proceeds of the policy, but must hold them subject to a resulting trust in favor of the estate of the insured. In re a policy in the Scottish Eq. Life Ass. Soc., II2 L. T. 197 (Eng., Ch. D.).

When property is purchased and title taken in the name of a stranger, it is the general rule that there is a presumption of a resulting trust for the donor. Finch v. Finch, 15 Ves. Jun. 43; see Dyer v. Dyer, 2 Cox 92. But this doctrine does not seem ever before to have been applied to life insurance policies, where the usual purpose is to make a gift to the beneficiary, and where therefore no presumption of a contrary intent is ordinarily well founded. It is general law that one who takes out a policy on his own life may make it payable to whom he pleases. Ashley v. Ashley, 3 Sim. 149; Langdon v. Union, etc., Ins. Co., 14 Fed. Rep. 272. Moreover the payee collects the proceeds of the policy for himself, unless there be strong circumstances to show another intention. Fairchild v. Northeastern, etc., Assoc., 51 Vt. 613; Scott v. Dickson, 108 Pa. St. 6; see American, etc., Ins. Co. v. Robertshaw, 26 Pa. St. 189. Even when the designated beneficiary dies before the insured, there is strong authority for the rule that his entire interest descends to his representatives. Swan v. Snow, 11 Allen (Mass.) 224; contra, Ryan v. Rothweiler, 50 Oh. St. 595. Moreover in the principal case the representatives of the beneficiary were designated, which furnishes an additional reason for allowing them to take, like the original beneficiary, for their own benefit. See Glanz v. Glockler, 104 Ill. 573.

INTERNATIONAL LAW — EXTRADITION—Acts Constituting Different Crimes IN THE TWO COUNTRIES. The United States, on behalf of the State of Washing ton, asked for the extradition of a fugitive upon evidence which made out a case of larceny by embezzlement within the definition of the Washington statutes. In England, the same evidence showed neither larceny nor embezzlement, but it did show the crime of "fraud by a banker" within § 81 of the Larceny Act; which was an extraditable offence under the Extradition Act of 1870, and the Treaty of 1889 with the United States. The prisoner sued out a writ of habeas corpus. Held, that he must be remanded for extradition. Rex v. Dix, 18 T. L. R. 231 (K. B.).

In the absence of an extradition treaty or an empowering statute, it would seem that there is no right or power in the executive of this country or of England to arrest and return to another country fugitives from justice. See 14 HARV. L. REV. 607; CLARKE, EXTRADITION, 3d ed., 123. In fact, statutes are passed only to authorize or to apply treaties. It follows, then, that extradition can be had only in accordance with the provisions of the treaty. In construing such treaties, it is generally held that the facts on which the application for extradition is based, must show prima facie a crime by the law of the country to which the application is addressed; that the crime thus made out must be one of those named as extraditable in the treaty; and that the names of crimes in the treaty are to be interpreted according to the law of the country which is asked to grant the extradition. In re Windsor, 6 B. & S. 522. The facts which are necessary thus to make out an extraditable crime must also include sufficient facts to show a crime by the law of the demanding country. In re Tully, 20 Fed. Rep. 812. These things being shown, it is just and desirable, that extradition should be granted, though the crime made out in one country be not conterminous with that shown in the other, and though it be not known by the same name. Bellencontre, [1891] 2 Q. B. 122; In re Arton (2), [1896] 1 Q. B. 509.

In re

INTERNATIONAL LAW-Rendition- Deserters from SHIPS OF WAR. — X, a Russian sailor sent to Philadelphia by the Russian government to man the cruiser Variag, which was being built there, deserted while the vessel was still in the hands of the builders. Art. 9 of the Treaty of 1832 with Russia provides for the arrest, etc., of "deserters from ships of war and merchant vessels of " Russia. Held, that X is a deserter from a ship of war within the meaning of the treaty. Tucker v. United States ex. rel Alexandroff, 22 Sup. Ct. Rep. 195. See NOTES, p. 657.

MORTGAGES-CLOG ON EQUITY OF REDEMPTION – AGREEMENT OUTLASTING THE MORTGAGE. — A lessee of a public-house, in mortgaging his term, purported to bind the land by a covenant that no malt liquors except such as should be bought from the mortgagees should be sold there during the whole term of the lease. Held, that this covenant is invalid, as clogging the equity of redemption. Noakes & Co. v. Rice, [1902] A C. 24.

A controlling stockholder in a company, in mortgaging his stock, contracted that he would use his best endeavors always thereafter to get the mortgagee employment from the company. Held, that this contract is enforceable, not being a clog on the equity of redemption. Carritt v. Bradley, [1901] 2 K. B. 550 (C. A.). See NOTES, p. 661.

MUNICIPAL CORPORATIONS DE FACTO PUBLIC OFFICER RECOVERY OF SALARY BY DE JURE OFFicer. A city in good faith paid to a de facto tax collector the percentage usually allowed on collections. Later the plaintiff was declared the rightful holder of the office, and he performed the duties during the remainder of the term. He then joined the city and the de facto collector as defendants in a suit to recover fees for the entire term. Held, that he may recover from the city such por tion as was not paid to the de facto collector, and that he may recover from the latter the sums paid to him by the city. Coughlin v. McElroy, 50 Atl. Rep. 1025 (Conn.). Emoluments attaching to public offices are commonly treated as incidental to the right to hold the office, not to the actual discharge of duties. See Nichols v. McLean, 101 N. Y. 526. This results from the historical conception of a public office, not as a contract of employment but as analogous to a grant. See MECHEM, PUBLIC Offices, §§ 1-5 Accordingly, it is held that a de facto officer cannot enforce payment by the city for services rendered, while the rightful incumbent may recover from the city any balance remaining unpaid, and generally he may recover from the de facto officer all benefits received by him. McCue v. County, 56 Ia. 698; Dolan v. Mayor, etc., 68 N. Y. 274; Nichols v. McLean, supra; but cf. Stuhr v. Curran, 44 N. J. Law 181. As to payments already made in good faith, the city is commonly, though perhaps illogically, protected. Scott v. Crump, 106 Mich. 288; Dolan v. Mayor, etc., supra; but contra, Andrews v. Portland, 79 Me. 484. Abundant authority thus supports the principal case. It would seem, however, that the ultimate right to remuneration should depend more upon actual service. So, although the city should be compelled to pay no more than the full salary, yet as between the two claimants, the de facto officer, provided he has acted in good faith, should have a quasi-contractual claim against the de jure officer for the fair value of his services, and expenses necessarily incurred. This view is not wholly without authority. Mayfield v. Moore, 53 Ill. 428; and see Stuhr v. Curran, supra.