brought a representative action on behalf of the corporation against its directors for damages due to the negligent administration of corporate affairs. The plaintiff had acquired a part of his stock from the negligent directors after, they had been guilty of breaches of duty. Held, that there could be no recovery on this stock. Harris v. Rogers, 179 N. Y. Supp. 799 (App. Div.).

By the weight of authority no stockholder can bring a representative action on behalf of the corporation if his transferor participated in the wrong, on the ground that a stockholder, like the transferee of a chose in action, stands in the shoes of his transferor. Boldenweck v. Bullis, 40 Colo. 253, 90 Pac. 634. See also Babcock v. Farwell, 245 Ill. 14, 41, 91 N. E. 683, 692. Contra, Parsons v. Joseph, 92 Ala. 403, 8 So. 788. This view overlooks the fact that in a representative action a stockholder acts in behalf of the corporation, and fails to perceive that the guilt of a stockholder should be only a personal bar against his participation in the fruits of the action. See Babcock v. Farwell, supra. The majority view is also due in part to the interpretation of Equity Rule 94 of the Supreme Court — which allows a stockholder to bring a representative action only if he owned stock at the time of the wrong, or acquired it subsequently by operation of law as the statement of a substantive equity principle. See Home Fire Ins. Co. v. Barber, 67 Neb. 644, 656–662, 93 N. W. 1024, 1029-1031. But this rule is merely procedural, to prevent frauds on the jurisdiction of the federal courts. See Quincy v. Steel, 120 U. S. 241, 245, 248; Venner v. Great Northern Ry., 209 U. S. 24, 34. It is submitted that the majority view is further objectionable in that it impairs the marketability of stock in general. See WARREN, Cases on CorpORATIONS, 886, note.

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CRIMINAL LAW-TRIAL - REVERSIBLE ERROR TO INSTRUCT JURY CONCERNING A DEGREE OF HOMICIDE LESS THAN THAT SHOWN BY THE EVIDENCE. The evidence in a murder trial indicated clearly that the killing was accomplished by lying in wait, and that it was done maliciously, deliberately and with premeditation. Over the objection of the defendant, the court instructed the jury as to both first and second degree murder. The jury found the accused guilty of the lower grade. Held, that a new trial be granted. Dickens v. People, 186 Pac. 277 (Colo.).

It is well established that it is not error for a court to confine its charge to first degree murder, when all the evidence indicates either that grade of the offense or innocence. Jarvis v. State, 70 Ark. 613, 67 S. W. 76; People v. Repke, 103 Mich. 459, 61 N. W. 861; State v. Cox, 110 N. C. 503, 14 S. E. 688. The present case goes a step further, and holds that it is erroneous for a trial court, in such a case, to charge on anything but first degree murder, a view supported by the weight of authority. State v. Stoeckli, 71 Mo. 559; Dresback v. State, 38 Oh. St. 365. The error consists in the fact that jurors who have a reasonable doubt of the accused's guilt, and who should accordingly vote for an acquittal, may conceivably compromise with that doubt by finding the accused guilty of a lower degree of homicide. See State v. Mahly, 68 Mo. 315. Confining instructions to first-degree murder will often be of practical benefit to a defendant, for he thereby obtains the advantage of any aversion which jurors may have to the weighty punishment accompanying conviction. See State v. Martin, 92 N. J. L. 436, 447, 106 Atl. 385, 389. It is to be noted that reversals should be restricted to those cases where the defendant objected and excepted at the trial, and where it is very clear that a charge on a lower grade of homicide was inapplicable.

DIVORCE

ALIMONY - WHETHER CONTEMPT IN FAILING TO PAY IS PUNISHABLE BY DISMISSING COMPLAINT. - The plaintiff had brought an action

for divorce against his wife. Upon his failure to pay alimony and counsel fees awarded to her, she moved to strike out his complaint. Held, that the motion be denied. Naveja v. Naveja, 179 N. Y. Supp. 881.

A refusal to pay alimony is a contempt of court, and may be punished by commitment. Fowler v. Fowler, 161 Pac. (Okla.) 227. See 30 HARV. L. REV. 518. But as imprisonment is frequently inadvisable, the court often resorts to punishment by denying, in the particular cause, the further use of its process to the delinquent until he has purged his contempt. Winter v. Superior Court, 70 Cal. 295; Casteel v. Casteel, 38 Ark. 477; Reed v. Reed, 70 Neb. 779, 98 N. W. 73. In New York, when the defendant was in contempt, the practice was formerly to strike out his answer and proceed to trial upon the facts alleged by the complainant. Walker v. Walker, 82 N. Y. 260; Delvin v. Hinman, 161 N. Y. 115, 55 N. E. 386. But the United States Supreme Court held that this was a violation of the Fourteenth Amendment, since it gave the defendant no opportunity to be heard in his own defense. Hovey v. Elliott, 167 U. S. 409. And it is especially bad in divorce cases, where the policy of the law requires that no divorce shall be granted except upon the merits. Trough v. Trough, 59 W. Va. 464, 53 S. E. 630. See 2 BISHOP, MAR. Div., & SEP., § 1095. But the Supreme Court indicated that it confined its decision to a situation where the punishment was a denial of a defense. See Hovey v. Elliott, supra, 444. While the decision of the principal case may be supported upon the ground that it is discretionary with the court whether it will punish for contempt, its observation that it is no longer permissible to strike out the plaintiff's complaint may well be questioned. See Reed v. Reed, supra, 784.

EMINENT DOMAIN-COMPENSATION-SET-OFF OF BENEFITS CONFERRED ON LAND REMAINING TO OWNER. - In an action to condemn a right of way for a railroad, the court excluded evidence offered by the railway company to show that the land remaining to the owners had increased in value through the building of a depot, stockyards, elevator, and side tracks. No evidence was offered to show that by the construction of the road or its improvements any physical benefits to the land ensued, Held, that there was no error. Gallatin Valley Electric Ry. v. Neible, 186 Pac. 689 (Mont.).

The courts of the various states have declared several diverse views as to what benefits, if any, may be set off in condemnation proceedings against the damage done to the landowner. See 2 LEWIS, EMINENT DOMAIN, 3 ed., § 687. It is commonly said, however, that general benefits, enjoyed in common with the rest of the community, cannot be set off. Lanier v. Greenville, 174 N. C. 311, 93 S. E. 850; Minneapolis Traction Co. v. Harkins, 108 Minn. 478, 122 N. W. 450. But deduction of special benefits is usually permitted. Bauman v. Ross, 167 U. S. 548; Ripkey v. Binns, 264 Mo. 505, 175 S. W. 206; In re Boyes, 98 Neb. 671, 154 N. W. 231. Whether, in a particular case, benefits to the landowner are general or special, is a question of fact for the jury. Colorado Cent. R. Co. v. Humphreys, 16 Colo. 34, 26 Pac. 165; Kirby v. Panhandle Ry. Co., 39 Tex. Civ. App. 252, 88 S. W. 281. The location of a depot near the property has been held insufficient evidence of special benefit to go to the jury. Washburn v. Milwaukee R. Co., 59 Wis. 364, 18 N. W. 328; Illinois, etc. Ry. Co. v. Borms, 219 Ill. 179, 76 N. E. 149. Contra, Peabody v. Boston Elevated Ry. Co., 191 Mass. 513, 78 N. E. 392. The same is true of increased transportation facilities. Portland Co. v. Ladd Co., 79 Ore. 517, 155 Pac. 1192; In re Mantorville Ry. Co., 101 Minn. 488, 112 N. W. 1033. Contra, Colorado Cent. R. Co. v. Humphreys, supra. The application of the rule to particular facts is aided by regarding the reason for making the distinction. "Just compensation" requires that benefits to the owner caused by the taking and use should be considered as well as the damage done thereby. See Bauman v. Ross, supra. 574. But it would be unjust to charge him with general benefits, for they are often speculative and conjectural, and it would be making him pay for benefits which are enjoyed by the rest of the community without any payment. See 3 SEDGWICK, DAMAGES, 9 ed., § 1129.

EVIDENCE-DECLARATIONS IN COURSE OF DUTY - SINGLE CARD FROM A CARD-SYSTEM AS EVIDENCE. The plaintiff, a physician, in order to prove services rendered to the decedent, offered in evidence a card, showing the name of the decedent, her address, and the dates of all visits made to her. Other evidence showed that such a card was kept for each patient, and the series formed the only books of the plaintiff. Held, that the card was not receivable. Daniel's Estate, 77 Leg. Int. 134.

Contemporaneous entries made in the regular course of business are a wellrecognized exception to the rule that hearsay declarations are not admissible in evidence. Shove v. Wiley, 18 Pick. 558; The Mayor v. Second Avenue R. R. Co., 102 N. Y. 572. The habitual accuracy of such entries, the ease with which errors are discovered, and the fear of the consequences of such discovery to the entrant make such evidence sufficiently trustworthy. The fact that pages may be readily substituted in a loose-leaf book, lessening probability of discovery, makes entries in such books less trustworthy. Yet the courts receive them. Wyman, Partridge & Co. v. Henne, 127 Minn. 535, 149 N. W. 647; Armstrong Clothing Co. v. Boggs, 90 Neb. 499, 133 N. W. 1122. See WIGMORE, EVIDENCE, § 1548. Even separate slips, not bound in any way, such as workmen's time slips and cashiers' deposit slips, have been admitted. New York Motor Car Co. v. Greenfield, 145 N. Y. Supp. 33; Ricker v. Davis, 160 Iowa, 37, 139 N. W. 1110. A rule of evidence admitting a single slip of this sort would be open to the objection that the jury can not, in determining credibility, judge of its accuracy by comparison with other entries. This objection would not apply to the principal case, however, because the card contained various entries made at various times. It resembled a complete ledger page. See Presley Co. v. Illinois Central R. R. Co., 120 Minn. 295, 139 N. W. 609. Thus the principal case can not be supported.

GIFTS GIFTS CAUSA MORTIS — EFFECT OF THE TRANSFER OF A SAVINGS BANK DEPOSIT TO JOINT ACCOUNT OF TRANSFEROR AND TRANSFEREE — WHAT CONSTITUTES DELIVERY. Three days before death the intestate, who had a deposit in a savings bank, delivered to the plaintiff the savings account book together with a written order to the bank to pay to the joint account of herself and the transferee. The transfer was accordingly made, and, after the depositor's death, the account was transferred to the plaintiff, who notified relatives of the deceased that she was holding the money for them. Held, that the plaintiff is not entitled to the fund. Hayes v. Claessens, 179 N. Y. Supp. 153 (App. Div.).

A delivery of the specialty with an intention to transfer the entire property will operate to vest in the transferee the legal and equitable interest in the chose. Hill v. Stevenson, 63 Me. 364. See In re Meyer's Estate, 125 N. E. 219 (Ind.); Cogswell v. Newburyport Institution for Savings, 165 Mass. 524, 43 N. E. 296. And a delivery of the specialty with an intention to convey a joint interest should be effective to that extent. When there has been no delivery of the account book a transfer to a joint account of the depositor and another offers the difficulty that the transferor retains complete control over the subject of the gift. Denigan v. Hibernia Loan & Savings Society, 127 Cal. 137, 59 Pac. 389; Norway Savings Bank v. Merriam, 88 Me. 146, 33 Atl. 840. But even in such a case the gift has been enforced as a valid chose against the bank. Deal's Administrator v. The Savings Bank, 120 Va. 297, 91 S. E. 135. Or as a trust. Booth v. Oakland Bank, 122 Cal. 19, 54 Pac. 370. Or even as a gift. State Bank v. Johnson, 151 Mich. 538, 115 N. W. 464. The court has apparently confused the case with the situation where the donor retains complete control. It finds its solution in an absence of an intention on the part of the donor to make a gift. Although the donor may not have intended to vest the full bene ficial ownership in the donee, there was an intention to give complete control

and the legal title. This should be sufficient after the bank has made the transfer.

HUSBAND AND WIFE- RIGHTS AND LIABILITIES OF WIFE AS TO THIRD PARTIES WIFE NOT LIABLE FOR FUNDS FRAUDULENTLY OBTAINED BY HUSBAND AND SPENT BY HER IN GOOD FAITH. - The defendant's husband misappropriated funds belonging to his principal, the plaintiff's decedent. Part of the funds he deposited to the credit of defendant's bank account. The defendant in good faith used the money for household expenses and in cash advances to her husband. In an action for money had and received, held, that the complaint be dismissed. Seagle v. Barreto, 179 N. Y. Supp. 856 (App. Div.). A depositary of stolen money who returns it to the thief before notice of the theft is not liable. Hill v. Hays, 38 Conn. 532. Nor is an agent who disposes of a negotiable instrument apparently belonging to his principal, and turns the proceeds over to the latter. Spooner v. Holmes, 102 Mass. 503. Consequently, as to the funds that the defendant turned over to her husband and those which she disbursed generally at his behest she should be protected. But as to the money expended on necessaries for herself she not only acted as agent but was also the recipient. That being true and the expenditure made being beneficial, she could not plead change of position as a defense, if she were a donee. See WOODWARD, QUASI CONTRACTS, § 29. But she is more than a donee. Her services, it is true, are not consideration, the duty to render them arising from the marriage relation. Blaechinska v. Howard, etc. Home, 130 N. Y. 497, 29 N. E. 755. She has, however, a legal claim on her husband for necessaries. Goodale v. Lawrence, 88 N. Y. 513; Cunningham v. Cunningham, 75 Conn. 64, 52 Atl. 318. See 1909 N. Y. CONSOL. L., DOMESTIC RELATIONS LAW, § 51. And the release of that claim is value and gives her indefeasible title to the money. Miller v. Race, 1 Burr. 452; First Nat. Bank v. Gibert, 123 La. 846, 49 So. 593. On this reasoning the result of the case can be supported.

HUSBAND AND WIFE - TENANCY BY ENTIRETIES — WHETHER PERSONALTY MAY BE HELD BY THE ENTIRETY. - An agreed statement of facts set forth that funds which were the proceeds of real estate owned in entirety by a husband and his wife and of personal property also owned by them were used to purchase store property both real and personal. The administrator of the husband's estate excepted this property from his accounts as property of the wife, and the account was allowed by the Probate Court. Held, that there was no error. George v. Dutton's Estate, 108 Atl. 515 (Vt.).

In some jurisdictions married women's acts have abolished estates in entirety and have substituted therefor tenancy in common. Thornley v. Thornley, [1893] 2 Ch. 229. See Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824. In other states tenancy by the entireties still exists. Buttlar v. Rosenblath, 42 N. J. Eq. 651, 9 Atl. 695; Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337. If realty is held in entirety, estates in entirety may exist in personalty growing out of the realty. Vartie v. Underwood, 18 Barb. (N. Y.) 561. At common law, chattels could not be held in entirety. See I BISHOP, MARRIED WOMEN, § 211. Whether choses in action which do not come within the doctrine of conversion can be held in entirety has been disputed. The orthodox common-law view is against estates in entirety in any personalty. Blake v. Jones, Bail. Eq. (S. C.) 141; Re Albrecht, 136 N. Y. 91, 32 N. E. 632. See 21 HARV. L. REV. 446. It is strange that since the passage of the emancipation statutes courts should follow the analogy of realty when dealing with personalty. Since estates in entirety in personalty were not recognized at common law a fortiori, they should not be sanctioned under the statutes which aim to abolish antiquated doctrines. But the possibility of estates in entirety in personalty finds some support. Phelps v. Simon, 159 Mass. 415, 34 N. E. 657; Bramberry's Appeal, 156 Pa. St. 628, 27 Atl. 405.

ILLEGAL CONTRACTS - CONTRACTS AGAINST PUBLIC POLICY AGREEMENT TO PROCURE EVIDENCE. - An attorney contracted with his client to litigate a claim for 40 per cent of the recovery. He then agreed that the client, who was a co-party in the action, should look up the evidence in the case for 20 per cent of the lawyer's fee. After the claim had been successfully litigated, the client sued for a breach of the agreement. Held, that the contract to procure evidence is illegal. Johnson v. Higgins, 108 Atl. 647 (Del.).

An agreement with a layman, stranger to the litigation, to compensate him for procuring evidence to be used in an action, is valid. Hare v. McGue, 178 Cal. 740, 174 Pac. 663. But such a contract is illegal, because against public policy, in that it tends to promote perjury and the fabrication of evidence, if the remuneration is contingent upon the character of the evidence to be produced. Such is the case when the evidence is to conform to an assumed state of fact. Neece v. Joseph, 95 Ark. 552, 129 S. W. 797. Or when the right to compensation is contingent upon the successful termination of the suit. Stanley v. Jones, 7 Bing. 369, 378; Quirk v. Muller, 14 Mont. 467, 36 Pac. 1077. Cf. Haley v. Hollenback, 53 Mont. 494, 165 Pac. 459. An agreement, however, with one not a stranger in interest to the litigation, to compensate him for securing evidence to sustain a defense, has been held unobjectionable, though remuneration was to be contingent upon success. Wellington v. Kelly, 84 N. Y. 543. Still more clearly, such an agreement would seem valid when made, as in the principal case, with a party to the litigation. His interest, as a party, in procuring a recovery, is stronger than his interest under the contract. The contingency, therefore, which might well induce a stranger in interest to manufacture evidence, will have no such effect upon him.

JUDGMENTS FOREIGN JUDGMENTS JURISDICTION CONFERRED BY APPEARANCE AFTER JUDGMENT. - An Ontario court gave judgment against the defendant, a resident of Alberta. For this judgment there was no jurisdiction. Later the defendant appeared, moved to set aside the judgment, and offered to defend on the merits. The motion was granted and an order to vacate the judgment given, but on conditions with which the defendant could not comply. Later, on motion of the plaintiff, an order vacating the order to vacate the judgment was given. The plaintiff then sued in Alberta on the Ontario judgment. Held, that the plaintiff recover. Bank of Ottawa v. Esdale, 1 W. W. R. 283 (Alberta).

For a discussion of the principles involved in this case see Notes, p. 960. LEGACIES AND DEVISES - PAYMENT - PRIORITY OF GENERAL LEGACY OVER RESIDUARY TO INCOME DURING FIRST YEAR. A will contained general legacies of $97,000 and also provisions for a residuary legacy. The assets amounted to only $93,000. During the first year after the testator's death, the principal earned interest amounting to $4500. Held, that this should go to the general legacies. Bennett's Estate, 77 Leg. Intell. 152.

The residuary legacy bears all losses from insufficiency of assets and is not entitled to abatement of general legacies. In re Title Guarantee & Trust Co., 195 N. Y. 339, 88 N. E. 375. See 2 WOERNER ON ADMINISTRATION, 2 ed., 452. Similarly, lapsed and void legacies will go to make up deficiencies in the general legacies rather than to the residuum. Nickerson v. Bragg, 21 R. I. 296, 43 Atl. 539; Wetmore v. St. Luke's Hospital, 56 Hun, 313, 9 N. Y. Supp. 753. General legacies enjoy this priority even where the changes take place after the death of the testator. Pace v. Pace, 271 Ill. 114, 110 N. E. 878; Porter v. Howe, 173 Mass. 521, 54 N. E. 255; Willmott v. Jenkins, 1 Beav. 401. These results are part of the general rule, based upon the imputed intention of the testator, that a residuary legatee takes only after the paramount claims, including general legacies, have been met. Under this rule the principal case is clearly right, for the income earned must be considered a part of the estate.