CONSTRUCTIVE TRUSTS MISCONDUCT BY NON-FIDUCIARIES CAN ONE GUILTY OF HOMICIDE, WITHOUT INTENT TO ACQUIRE PROPERTY THEREBY, OBTAIN TITLE BY HIS CRIME? - A husband, intending to kill a third person, killed his wife. He was convicted of manslaughter, and now claims his share in the wife's property under the statute of distributions. Held, that he is entitled to beneficial succession. Estate of Fox, 52 N. Y. L. J. 1115 (Surr. Ct., N. Y. County).

What appears to be the weight of authority agrees with a recent Illinois case, which allows one who murdered his victim in order to inherit his property to retain both legal and beneficial title to the property. Wall v. Pfanschmidt, 106 N. E. 785 (Ill.). McAllister v. Fair, 72 Kan. 533, 84 Pac. 112; Hill v. Noland, 149 S. W. 288 (Tex. Civ. App.). See 27 HARV. L. REV. 280. If this view be adopted, there can be no doubt as to the correctness of the principal case. It has been suggested, however, that in all cases of acquisition of property by murder or other wrongdoing a constructive trust should be raised on the property in favor of the innocent heirs or next of kin of the victim. See AMES, LECTURES ON LEGAL HISTORY, p. 310. The principal case intimates, by way of dictum, that this relief should be given in case of homicide with intent to acquire property as heir or devisee. See also Ellerson v. Westcott, 148 N. Y. 149, 154, 42 N. E. 540, 542. But in the absence of such an intention, it refuses to deprive the slayer of either beneficial or legal ownership. The constructive-trust theory at best involves serious difficulties, for it is rather anomalous that those who have been deprived of a mere chance of succession should be given property to which they were otherwise not entitled. See 27 HARV. L. REV. 280. In situations where there was no intent to acquire property by the crime, it seems that the theory breaks down completely, for the tort analogy upon which this relief must be based requires intentional wrongdoing with respect to the prospective beneficiaries in order to give them a right of action.

CONTEMPT - ACTS AND CONDUCT CONSTITUTING CONTEMPT - PROCURING INSTITUTION OF A FRAUDULENT SUIT ON MANUFACTURED EVIDENCE. A physician, in collusion with two attorneys, persuaded a man to bring an action for alleged injuries sustained in an accident, and before the action was begun, bandaged the plaintiff to make him appear injured. The complaint was withdrawn before trial. On an information, the physician was tried and convicted of contempt of court. Held, on appeal, that the conviction should be reversed. Melton v. Commonwealth, 170 S. W. 37 (Ky.).

Acts not done in the presence of the court, which tend to obstruct or embarrass the administration of justice, are constructive contempts. See O'Neil v. People, 113 Ill. App. 198; 27 HARV. L. REV. 165. Direct contempts, on the other hand, occur in the presence of the court and are punishable immediately by summary proceedings. In cases of constructive contempts, however, the procedure must be that adopted in this case; that is, the accused must be given a chance to defend himself in a regular trial. See RAPALJE, CONTEMPTS, $22. To bring a fictitious or fraudulent suit to trial is a direct contempt, and is punishable summarily. Coxe v. Phillips, Hardw. 237. See Smith v. Brown, 3 Tex. 360; Lord v. Veasie, 8 How. (U. S.) 251, 255. To persuade and procure a man to bring such a suit, as in the principal case, equally tends to obstruct justice, and should therefore be punishable as a constructive contempt. It should make no difference that the offender is not an officer of the court, or that he is also punishable for the common-law misdemeanor of obstructing justice. Coxe v. Phillips, supra; Bradley v. State, 111 Ga. 174, 36 S. E. 632. The punishment of such a contempt, furthermore, is in the discretion of the offended court, and their decision is ordinarily not subject to review, except for lack of jurisdiction. Watson v. Thomas, 6 Litt. (Ky.) 248; Shattuck v. State, 51 Miss. 567; see RAPALJE, CONTEMPTS, § 141.

CONTRACTS

SUITS BY THIRD PERSONS NOT PARTIES TO THE CONTRACT SOLE BENEFICIARY; CONTRACT MADE BY LABOR UNION FOR THE BENEFIT OF ITS MEMBERS NEW YORK LAW. In consideration of the right to use the union label, an employer agreed with a labor union to employ only union workmen and to pay them a minimum wage of eighteen dollars a week. The plaintiff, a member of the union, who in ignorance of this contract had worked for the employer at nine dollars a week, now sues to recover the difference between the wages that he received and the wages stipulated for in the contract between the union and the employer. Held, that he can recover. Gulla v. Barton, 149 N. Y. Supp. 952 (App. Div.).

In New York a creditor can recover on a contract made for his benefit by his debtor. Lawrence v. Fox, 20 N. Y. 268. But a sole beneficiary is not allowed to recover. Durnherr v. Rau, 135 N. Y. 219, 32 N. E. 49. When the sole beneficiary is a dependent relative, however, recovery is allowed on the singular theory that the moral obligation to support brings the contract within the rule of Lawrence v. Fox. Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724; Knowles v. Erwin, 43 Hun (N. Y.) 150. By analogy to this exception, citizens have lately; been allowed to recover on contracts made for their benefit by a municipality. Smyth v. City of New York, 203 N. Y. 106, 96 N. E. 409; Pond v. New Rochelle Water Co., 183 N. Y. 330, 76 N. E. 211. See 25 HARV. L. REV. 289. The principal case goes a step further and establishes the rule that the members of an association for mutual aid can recover on a contract made for their benefit by the association. Since the moral obligation which is owed to a dependent relative or to a member of a union clearly does not make the contract one for the benefit of a creditor, these cases display a growing tendency on the part of the New York courts to relax the rule denying recovery on contracts for a sole beneficiary.

CORPORATIONS STOCKHOLDERS: INDIVIDUAL LIABILITY TO CORPORATION AND CREDITORS — STOCK Left RegisterED IN VENDOR'S NAME THROUGH CORPORATION'S FAULT. A bank cashier sold his stock to the man who was about to become president of the bank. By the vendor's resignation there was no proper official to register the transfer, but he trusted his vendee, the new president, to see it properly done. The vendee failed to do this and now a creditor seeks to hold the vendor as a stockholder under an individual liability statute. Held, that the defendant is not liable. Bank of Midland v. Harris, 170 S. W. 67 (Ark.).

For a discussion of the effect of failure to transfer stock on the books of the corporation, see NOTES, p. 422.

CORPORATIONS STOCKHOLDERS: RIGHTS INCIDENT TO MEMBERSHIP LIABILITY OF DIRECTOR FOR DAMAGE TO THE CORPORATION AS STOCKHOLDER IN ANOTHER CORPORATION. Plaintiff corporation owned all but eighteen out of three thousand shares in a New Jersey corporation doing business in Brazil, of which H. was general manager. Defendant, a director of the plaintiff, but not of the subsidiary, corporation, acquired part ownership in another company also doing business in Brazil, of which H., to the knowledge of defendant but unknown to plaintiff, became part owner, and to which, with defendant's assistance in concealing facts, he misapplied $185,000 of the assets of the subsidiary corporation. The complaint is based on violation of duty as director through neglect to inform and intentional concealment. Defendant demurs. Held, that the demurrer should be overruled. General Rubber Co. v. Benedict, 164 N. Y. App. Div. 332, 149 N. Y. Supp. 880.

For a discussion of the novel question here presented of whether a corporation is entitled to bring action directly for wrongfully depreciating the value of stock that it holds in a second corporation which may itself proceed against the wrongdoer, see NOTES, p. 409.

EMINENT DOMAIN COMPENSATION - DENIAL OF COMPENSATION FOR BUILDINGS ERECTED IN LINE OF PLOTTED STREETS. - A state statute authorized the defendant city to adopt a plan of city streets, and provided that property owners should recover no damages for buildings which should be erected within the lines of such plotted streets. The plaintiff owned land in the business center of the city which was adapted for building purposes. Streets had been plotted over this land but had not yet been opened. The plaintiff seeks relief in the federal court against the provisions of the statute. Held, that the plaintiff is entitled to no relief. Harrison v. City of Philadelphia, 217 Fed. 107 (Dist. Ct., E. D. Pa.).

To deny compensation to a landowner for buildings erected by him in the line of streets plotted but not yet opened, deprives him of a most substantial right of user. Accordingly the authorities are generally agreed that such a statutory provision is unconstitutional. State v. Carragan, 36 N. J. L. 52; Forster v. Scott, 136 N. Y. 577. Thus if the landowner does erect buildings, he will receive proper compensation in spite of the statute, when the streets are opened. State v. Carragan, supra. The mere plotting of the streets, therefore, deprives him of no appreciable right of user, and is not such a taking as to demand compensation. State v. Seymour, 35 N. J. L. 47; see District of Columbia v. Armes, 8 App. D. C. 393, 415. The principal case is equally correct even if the provision denying compensation for subsequently erected buildings is upheld by construing the statute to give a present right to damages for the consequential injury. See Chester County v. Brower, 117 Pa. St. 647. To uphold the provision without this construction, however, would deprive the owner of property without due process of law, and in that event, he would be able to invoke the protection of the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 235 et seq.

EVIDENCE

CONFESSIONS

·ADMISSIBILITY OF INVOLUNTARY CONFESSION TO IMPEACH DEFENDANT AS A WITNESS. In a trial for murder the written confession of the defendant was not shown to be voluntary, and was not offered as direct evidence. The defendant, however, took the stand, and it was then introduced as a prior contradictory statement, to impeach the defendant's credibility as a witness. Held, that it is also inadmissible for this purpose. Jones v. State, 149 N. W. 327 (Neb.).

The exclusion of involuntary confessions rests partly upon the desire to give the accused a fair trial, but chiefly upon the probability of their untrustworthiness in view of the circumstances under which they were made. See I WIGMORE, EVIDENCE, § 822. In administering this rule of exclusion, some authorities have treated confessions as primâ facie admissible, relying on their primary character as admissions. State v. Grover, 96 Me. 363, 52 Atl. 757; Hopt v. Utah, 110 U. S. 574. Other cases hold a confession admissible unless evidence of its involuntary character is introduced, but then throw the burden of proof on the prosecution to show its admissibility. Queen v. Thompson, [1893] 2 Q. B. 12; see I WIGMORE, EVIDENCE, § 860. The principal case, however, takes the view that the prosecution must show the confession to have been voluntary before it is admissible as direct evidence. McAlpine v. State, 117 Ala. 93, 23 So. 130. It therefore seems correct in rejecting it when offered to impeach the defendant. When the accused takes the stand, his credibility may in general be attacked like that of any other witness. Commonwealth v. Bonner, 97 Mass. 587; State v. Murphy, 45 La. Ann. 958, 13 So. 229. But the prosecution should not be permitted by indirect methods to lay before the jury evidence which is inadmissible directly. Moreover, it is submitted that a confession rejected as untrustworthy evidence of guilt is also somewhat untrustworthy for purposes of impeachment. State v. Shepard, 88 Wis. 185, 59 N. W. 449. Contra, Commonwealth v. Tolliver, 119 Mass. 312; and see State v. Broadbent, 27 Mont. 342, 71 Pac. 1.

EVIDENCE-HEARSAY IN GENERAL-APPLICABILITY OF THE HEARSAY RULE TO CONDUCT OF THIRD PERSON. At the trial of an indictment for murder, the defendant set up, among other defenses, that his blow did not cause the death of the deceased, who had previously been struck by the independent act of a third person. The trial court refused an instruction that the flight of this third person from the scene of the crime should be considered as substantive testimony tending to exculpate the defendant. Held, that the instruction was properly refused. State v. Piernot, 149 N. W. 446 (Ia.).

The court argues that the flight is barred by the hearsay rule, under the prevailing view that confessions of crime by third persons are inadmissible. Donnelly v. United States, 228 U. S. 243. See 26 Harv. L. Rev. 755. This is highly questionable. The hearsay rule is designed to exclude assertions upon the credit of persons not sworn and not subject to cross-examination. See 2 WIGMORE, EVIDENCE, § 1362. But conduct, as distinguished from statements or "acts whose import is that of a statement," is not covered by the rule. See PHIPSON, EVIDENCE, 5 ed., 207; 15 AM. L. REV. 71, 77. See also 26 HARV. L. REV. 148. This is evident from a variety of cases. See I WIGMORE, EVIDENCE, §§ 272, 461, 462. For instance, a falling off of patronage was admitted to prove that the defendant had injured the plaintiff's product, although the principal case might twist this conduct into an unsworn assertion by third parties that the quality of the article had suffered. Cunningham v. Stein, 109 Ill. 375. Similarly, the flight of the third person, if relevant, should be clearly admissible, for it involves no reliance on the credit of any declarant out of court. Nevertheless many courts agree with the principal case in excluding the evidence. Owensby v. State, 82 Ala. 63, 2 So. 764. Ott v. State, 160 Ala. 29, 49 So. 810. State v. White, 68 N. C. 158. Contra, Jackson v. State, 67 S. W. 497 (Tex.). It is a narrow enough rule that refuses to admit confessions of guilt by third parties, and it seems highly undesirable, as well as totally indefensible, to reject by analogy evidence not at all within the proper scope of the hearsay rule. The result of the principal case, however, may perhaps be sustained on the ground that the flight of the other actor, however much it may have indicated the consciousness of a criminal act on his part, was not inconsistent with the defendant's act being the fatal force, and was, therefore, irrelevant.

EVIDENCE TESTIMONY GIVEN AT FORMER TRIAL ADMISSIBILITY OF TESTIMONY AT CRIMINAL TRIAL IN A SUBSEQUENT CIVIL ACTION. In an action for damages for personal injuries, the plaintiff introduced evidence of the testimony of a witness, since deceased, in a criminal action against the defendant for the same injury. Held, that the evidence is admissible. Ray v. Henderson, 144 Pac. 175 (Okla.).

The testimony of a deceased witness in a prior action is said to be admissible in a subsequent action involving the same issue, when it is between the same parties or their privies. The requirement that both parties be the same seems to have been based upon some theory of mutuality of admissibility of the evidence against either party. Morgan v. Nicholl, L. R. 2 C. P. 117; Metropolitan Street Ry. v. Gumby, 39 C. C. A. 455, 99 Fed. 192. But the theory of this exception to the hearsay rule depends not upon the idea of fairness to both sides, but on whether the party against whom the evidence is offered has had sufficient opportunity to cross-examine the witness concerning the matter in issue. Charlesworth v. Tinker, 18 Wis. 633. Upon this theory, the testimony of a witness at a criminal trial has been held admissible against the same defendant in a later civil action involving the same issue, the witness having died in the meantime. Kreuger v. Sylvester, 100 Ia. 647, 69 N. W. 1059; Gavan v. Ellsworth, 45 Ga. 283. Contra, McInturff v. Insurance Co. of N. A., 248 Ill. 92, 93 N. E. 369. Harger v. Thomas, 44 Pa. St. 128. The principal

case, therefore, seems correct in admitting the testimony, and a recent Kentucky case to the same effect now makes it in accord with the weight of authority. North River Ins. Co. v. Walker, 170 S. W. 983 (Ky.).

EXTRADITION - INTERSTATE EXTRADITION UNDER THE UNITED STATES CONSTITUTION - HABEAS CORPUS PROCEEDINGS RAISING THE DEFENSE OF INSANITY. - A prisoner who had been acquitted of homicide in New York upon the ground of insanity escaped from an asylum to which he had been committed under statutory authority and fled to New Hampshire. He was there arrested for extradition to New York in compliance with a demand based upon an indictment for conspiracy to pervert and obstruct the due administration of the laws of New York. The fugitive sued out a writ of habeas corpus in the federal court to test the legality of his arrest. Held, that he should not be released. Drew v. Thaw, 235 U. S. 432.

A person accused of crime in another state may lawfully be arrested for extradition if, as was plainly the case here, he is a fugitive from the demanding state, and if the demand for his return is accompanied by a duly certified indictment or affidavit, which substantially charges him with the commission of a crime. U. S. CONST., Art. 4, § 2; U. S. REV. STAT., § 5278. And see Roberts v. Reilly, 116 U. S. 80, 95, 97. Whether a crime is charged is a question of the law of the demanding state, which is open to inquiry upon habeas corpus proceedings. In re Renshaw, 18 S. D. 32, 99 N. W. 83. See Pierce v. Creecy, 210 U. S. 387. And cf. Kentucky v. Dennison, 24 How. (U. S.) 66, 103. But the technical sufficiency of the indictment as a criminal pleading is immaterial. Ex parte Reggel, 114 U. S. 642; Davis's Case, 122 Mass. 324. Furthermore, the guilt or innocence of the prisoner is not in issue, and any defenses he might offer at his trial are to be disregarded, unless they negative a primâ facie charge of crime. Pierce v. Creecy, supra; Ex parte Hart, 59 Fed. 894; Commonwealth v. Supt. of Prison, 220 Pa. St. 401, 69 Atl. 916; and see cases collected in 21 L. R. A. N. s. 939. Under the laws of New York, a conspiracy to escape from confinement in an asylum under the circumstances of the principal case is plainly criminal. CODE OF CRIM. PROC., § 454; CONSOL. LAWS, N. Y. PENAL LAW, § 580, subd. 6. Hence, the indictment substantially charged a crime, and the court properly refused to consider the possible defense of insanity. It is gratifying that the curiously misconceived opinion of the law advanced by the District Court is thus authoritatively corrected. See Ex parte Thaw, 214 Fed. 423.

GIFTS - GIFTS MORTIS CAUSA - DELIVERY BY DONOR WHO HAS HOPE OF RECOVERY. The donor had tuberculosis, and upon leaving for a sanitarium where he hoped to be cured, gave his savings bank book to his physician to give to the donor's sister in case the donor should die. As a matter of fact the donor had practically no chance of recovery, and eleven months later died. The sister now seeks to recover the deposit from the bank. Held, that the plaintiff cannot recover, on the ground that the gift was not made in apprehension of death. Danzinger v. Seamen's Bank for Savings, 86 N. Y. Misc. 316, 149 N. Y. Supp. 207.

The handing over of a savings bank book is a sufficient delivery for a gift mortis causa. Tillinghast v. Wheaton, 8 R. I. 536. However, it is essential to such a gift that it should be made under a definite apprehension of death, caused by some existing disease or peril. Taylor v. Harmison, 79 Ill. App. 380; Gourley v. Linsenbigler, 51 Pa. 345. But it is not necessary that the donor should have given up all hope of life, or that he should die within any fixed time after the making of the gift. Grymes v. Hone, 49 N. Y. 17; Williams v. Guile, 117 N. Y. 343; Nicholas v. Adams, 2 Whart. (Pa.) 17. In