the unloading is prevented by unavoidable causes. A statute changing the common law modifies it no further than the clear import of its language necessarily implies. Johnson v. Southern Pacific Co., 117 Fed. 462. The decisions under this statute give no indication of relieving the carrier of his commonlaw liability, and uniformly consider its only purpose to be the prevention of cruel treatment of animals in interstate shipments. See Chesapeake & Ohio Ry. Co. v. American Exchange Bank, 92 Va. 495, 502, 23 S. E. 935, 937. United States v. St. Louis, I. M. & S. Ry. Co., 177 Fed. 205. The liability of the carrier in transportation is still left as at common law. See Missouri Pacific Ry. Co. v. Ivy, 79 Tex. 444, 446, 15 S. W. 692, 693. The court seems to go beyond legitimate bounds in an attempt to cut down the carrier's common-law liability.

CARRIERS PERSONAL INJURIES TO PASSENGERS - CONTAGIOUS DISEASE OF FELLOW PASSENGER. The plaintiff sued as administrator for the death of his intestate, alleged to have been caused by contagious disease contracted from a fellow passenger of the intestate on the defendant's railroad. The defendant's conductor had no knowledge of the disease of the fellow passenger. Held, that the plaintiff cannot recover. Bogard's Admr. v. Illinois Central R. Co., 139 S. W. 855 (Ky.).

A carrier is under a duty to use the highest care to provide safe conveyances, and is liable for injuries to passengers resulting from defects which might have been discovered by the use of such care. Palmer v. President, etc. of Delaware & Hudson Canal Co., 120 N. Y. 170, 24 N. E. 302; International & Great Northern Ry. Co. v. Anthony, 24 Tex. Civ. App. 9, 57 S. W. 897. A carrier is under a duty to use the highest care to protect passengers from foreseeable injuries by their fellow passengers. Kuhlen v. Boston & Northern Street Ry. Co., 193 Mass. 341, 79 N. E. 815. It would not be practicable to extend the duty of inspection_of_conveyances to inspection of passengers. Cf. Gulf, Colorado & Santa Fé Ry. Co. v. Shields, 9 Tex. Civ. App. 652, 29 S. W. 652. But the duty of the carrier would seem to require the conductor to take precautions when a reasonably prudent man would be so impelled by the facts under his observation. Cf. Houston & T. C. R. Co. v. Phillio, 67 S. W. 915 (Tex.). Under this view the decision in the principal case may be questioned. But cf. Long v. Chicago, Kansas & Western R. Co., 48 Kan. 28, 28 Pac. 977.

CONSPIRACY CRIMINAL LIABILITY EFFECT OF GRANTING NEW TRIAL TO ONE DEFENDANT. - A new trial was granted one of several defendants indicted for conspiracy, on errors in no way prejudicial to the others, one of whom appealed. Held, that the verdict should stand as to the appellant. Dufour v. United States, 39 Wash. L. R. 714 (D. C., Ct. App.).

This case follows a recent American decision. Browne v. United States, 145 Fed. 1. But it is opposed to the weight of authority. Queen v. Gompertz, 9 Q. B. N. s. 824; Isaacs v. State, 48 Miss. 234. There seems to be no reason on principle why a new trial should not be given to one conspirator and refused to another, if it is certain that the error affected only the first. As a practical matter it usually will affect both, but by no means necessarily. There is, of course, no repugnancy in acquitting some and convicting others of those jointly indicted for conspiracy. Jones v. Commonwealth, 31 Grat. (Va.) 836.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW INHERITANCE TAX ON DEPOSITED PROPERTY COLLECTED THROUGH SAFE DEPOSIT COMPANY. A statute provided that a safe deposit company on the death of a depositor should give the proper state officials ten days' notice before delivering over the property deposited to the legal representatives of the deceased and should retain a sufficient amount thereof to pay an inheritance tax on such property or be

liable to a penalty. Held, that the provision is not unconstitutional. National Safe Deposit Co. v. Stead, 95 N. E. 973 (Ill.).

The statute was objected to as impairing the obligation of the company's charter, as depriving it of liberty and property without due process of law, as subjecting the property to unreasonable searches and seizures, and as devoting the property, by delaying its delivery, to a public use without just compensation. On the death of the depositor the company would seem to hold the property as a bailee for the state and other parties entitled, as tenants in common, since an inheritance tax statute vests a property right in the state at the death of the decedent. In re Estate of Graves, 242 Ill. 212, 89 N. E. 978; Estate of Stanford, 126 Cal. 112. The view taken by the court, therefore, that the effect of the statute was merely to require a bailee to give notice to a part owner to be present at the distribution of the bailed property and to deliver to such owner his proportionate share, would seem to be justifiable, and renders all the objections taken invalid. The case is but an instance of the right of the state in certain cases for convenience and greater certainty to collect a tax by indirection through a third party. Commonwealth v. D. & H. Canal Co., 150 Pa. St. 245, 24 Atl. 599. See Monticello Distilling Co. v. Mayor, etc. of Baltimore, 90 Md. 416, 427, 45 Atl. 210, 212.

CONTRACTS SUITS BY THIRD PERSONS NOT PARTIES TO CONTRACT CONTRACT WITH CITY TO ANSWER FOR DAMAGES TO PROPERTY OWNERS. Property abutting on the route of a subway was damaged because of the improper methods of construction employed by a sub-contractor. The original contractor had contracted with the city to be answerable for such damages. Held, that the city is not, and the original contractor is, liable in damages to the owner of the abutting property. Smyth v. City of New York, 203 N. Y. 106. This case extends somewhat the doctrine of Lawrence v. Fox, 20 N. Y. 268. Hitherto, in New York, the beneficiary could, in general, sue upon the contract only when he was owed some duty by the promisee. Durnherr v. Rau, 135 N. Y. 219. An exception was made when the defendant had violated the terms of its public franchise. Pond v. New Rochelle Water Co., 183 N. Y. 330. Also the beneficiary might sue if the defendant had been negligent while performing a contract to fulfil a function of the state. Robinson v. Chamberlain, 34 N. Y. 389. In these cases there could have been a recovery apart from the contract, either on the public service law, or for personal negligence. In the principal case there was no liability except upon the contract. A majority of the jurisdictions in this country follow Lawrence v. Fox, but of these, only New York and Minnesota deny recovery to a "sole beneficiary." Durnherr v. Rau, supra; Jefferson v. Asch, 53 Minn. 446. Courts allowing recovery by the "sole beneficiary" attain the correct result, but as the doctrine of permitting the third party to sue at law upon such a contract is wrong in principle, the conclusion is reached in an improper way. See 15 HARV. L. Rev. 767, 772-775, 780-785.

SUIT

CONTRACTS SUITS BY THIRD PERSONS NOT PARTIES TO CONTRACT IN EQUITY BY CREDITOR OF PROMISEE. A. conveyed assets to B. in return for B.'s promise to pay the debts of A. B. conveyed the same assets to C. in return for C.'s promise to pay the same debts. Held, that a creditor of A. can recover from C. in equity. Forbes v. Thorpe, 95 N. E. 955 (Mass.).

In Massachusetts a creditor cannot sue at law on a contract made for his benefit by the debtor. Morril v. Lane, 136 Mass. 93; Borden v. Boardman, 157 Mass. 410, 32 N. E. 469. So rigidly has this rule been observed, that of all the American jurisdictions, including those which ordinarily deny the creditor a right of action, Massachusetts alone refuses to allow a mortgagee to proceed against a grantee who has assumed the mortgage debt. Mellen v. Whipple,

1 Gray (Mass.) 317; Keller v. Ashford, 133 U. S. 610. See Woodcock v. Bostic, 118 N. C. 822, 828, 24 S. E. 362, 363. Although the actual decisions go only so far as to hold that the mortgagee has no right at law, there have been judicial utterances which seem to indicate that no action would lie even in equity. See Rice v. Sanders, 152 Mass. 108, 113. A fortiori, in the ordinary case, it would seem, equity would not act. The present case, therefore, in recognizing and assigning as one ground of the decision a right in the creditor to enforce in equity the promisee's right to compel performance by the defendant of the agreement made for the creditor's benefit, apparently marks a decided change in the attitude of this court. The change is all the more welcome since it places the law pertaining to this subject on a basis which is theoretically justifiable. See 15 HARV. L. REV. 767, 775 et seq.

CORPORATIONS - STOCKHOLDERS: INDIVIDUAL LIABILITY TO CORPORATION AND CREDITORS RELEASE OF SUBSCRIBER TO CAPITAL STOCK. - Under a statute providing for the absolute liability of stockholders for the debts incurred by a corporation, while they were stockholders, a corporation released certain subscribers to its capital stock and later incurred a debt. Held, that the creditor cannot reach these subscribers. Thomas v. Wentworth Hotel Co., 117 Pac. 1041 (Cal.). See NOTES, p. 278.

CORPORATIONS STOCKHOLDERS: POWERS OF MAJORITY - VALIDITY OF ELECTION AFTER QUORUM BROKEN BY WITHDRAWAL OF STOCKHOLDERS. After the annual meeting of the stockholders of a corporation had been duly organized, some stockholders without justification withdrew to break the quorum. Those remaining elected the defendants to office. Held, that the election is valid. Commonwealth ex rel. Sheip v. Vandegrift, 81 Atl. 153 (Pa.).

When stockholders withdraw from a regularly organized meeting, and organize another meeting for the election of officers, the election is invalid, even though a majority of the stock is represented. Commonwealth ex rel. Langdon v. Patterson, 158 Pa. St. 476, 27 Atl. 998. But see In re Cedar Grove Cemetery Co., 61 N. J. L. 422, 39 Atl. 1024. But the question in the principal case is as to the validity of the proceedings of the remaining minority in the original meeting. A quorum is necessary to the legal organization of a meeting; but when the meeting is organized, in the absence of statutory requirement, a majority of the votes cast will elect. See In re Argus Printing Co., 1 N. D. 434, 48 N. W. 347. Those who do not vote are bound by the action of those who do. State ex rel. Martin v. Chute, 34 Minn. 135, 24 Ñ. W. 353. It would seem that those who withdraw should be in no better position to attack the proceedings than those who are present and do not vote. Every stockholder's right is protected by the requirement that the meeting be conducted in a parliamentary manner. See Procter Coal Co. v. Finley, 98 Ky. 405, 33 S. W. 188. The decision in the present case seems sound. Under any other rule important corporate action might be indefinitely delayed by a faction of the stockholders.

EQUITY -- JURISDICTION - DISCRETION OF COURT IN GRANTING RELIEF. — The plaintiff's agent purported to sell the plaintiff's land as his own to the defendants. He later represented to the plaintiff that he had sold it to another, but paid over part of the money received from the defendants. The plaintiff brought a bill to quiet title. Held, that if the defendants will pay the balance of the purchase price which the plaintiff believed to be due him, the plaintiff should convey to them. Haswell v. Standring, 132 N. W. 417 (Ia.).

In order to achieve an equitable result the court has fastened on the plaintiff a bargain which he has not made. Such action is open to two objections. It denies the plaintiff the right to make his own bargain and in so far does him injustice, and further it destroys all certainty in the settlement of disputes,

If the court may choose what bargain it will enforce, as being the most equitable, or what the parties might have done had they known the facts, the law will vary with the opinion of the individual chancellor. Cf. GRAY, RULE AGAINST PERPETUITIES, 2 ed., 590-603. The whole tendency of modern judicial thought has been against such uncertainty. See I POMEROY, EQUITY JURISPRUDENCE, 3 ed., § 59. While the doctrine of doing equity forces the plaintiff to respect rights of the defendant growing out of the transaction from which relief is demanded, it will not go so far as to force him to respect rights which the defendant does not have. Manternach v. Studt, 240 Ill. 464, 88 N. E. 1000. That the court believes it better for the defendant that he should have those rights should not be enough to justify it in creating them.

EXEMPTIONS · COUNTERCLAIM IN AN ACTION TO RECOVER PROPERTY EXEMPT BY STATUTE FROM EXECUTION. – In an action by a plaintiff for wages which were exempt by statute from attachment and execution, the defendant pleaded a counterclaim. Held, that the counterclaim should not be allowed. Bradley v. Earle, 132 N. W. 660 (N. D.).

The necessity of a liberal construction of exemption statutes, to give effect to the real intent of the legislature that a certain amount of the debtor's property be exempt from any kind of coercive process of the law, is most apparent perhaps in cases where a set-off of a debt has not been permitted against a judgment recovered against the creditor for a wrongful seizure of the exempt property. Treat v. Wilson, 65 Kan. 729, 70 Pac. 893; Moore v. Graham, 29 Tex. Civ. App. 235, 69 S. W. 200. Any other rule would seem to render exemption statutes nugatory. Some courts, however, have refused to make a liberal construction of the exemption statutes, limiting the exemption to the property itself, not including judgments representing such property, and to cases where the exemption is claimed on an actual execution. Temple v. Scott, 3 Minn. 419; Caldwell v. Ryan, 210 Mo. 17, 108 S. W. 533. The principal case, however, is in accord with the great weight of authority, which holds, it would seem correctly, that allowing a set-off in any case where what the plaintiff is suing for would ordinarily be exempt from attachment or execution, would subvert the purpose of the exemption statutes. Millington v. Laurer, 89 Ia. 322, 56 N. W. 533; Collier v. Murphy, 90 Tenn. 300, 16 S. W. 465.

FEDERAL COURTS - JURISDICTION BASED On Nature of SUBJECT MATTER - SUIT AGAINST CORPORATION ORGANIZED UNDER ACT OF CONGRESS FOR UNORGANIZED TERRITORY. The defendant corporation was incorporated under an act of Congress which extended over Indian Territory certain laws of Arkansas relating to corporations. This unorganized territory later became the State of Oklahoma, in the court of which state this suit was originally brought. Held, that the cause cannot be removed to the federal court. Boyd v. Great Western Coal & Coke Co., 189 Fed. 115 (Circ. Ct., E. D. Okl.).

Corporations of the United States organized under acts of Congress are entitled to remove into the federal courts suits brought against them in state courts, since such suits arise under the laws of the United States. Pacific Railroad Removal Cases, 115 U. S. 2, 5 Sup. Ct. 1113. Whether corporations organized under territorial laws come within this rule is not clear on the authorities. Corporations organized under acts of territorial legislatures have not been considered federal because of their local nature. Maxwell v. Federal Gold & Copper Co., 155 Fed. 110. Cf. United States v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746. However, the contrary view is taken where corporations are organized under acts of Congress for unorganized territories. Canary Oil Co. v. Standard Asphalt & Rubber Co., 182 Fed. 663. It is difficult to perceive any substantial distinction between these cases. Acts of territorial legislatures are really vicarious acts of Congress. See Snow v. United States, 18 Wall. (U. S.) 317, 321;

Binns v. United States, 194 U. S. 486, 491, 24 Sup. Ct. 816, 817. Moreover, the United States Supreme Court has held corporations to be federal when formed under acts for the District of Columbia. Knights of Pythias v. Kalinski, 163 U. S. 289, 16 Sup. Ct. 1047. But see Daly v. National Life Ins. Co., 64 Ind. 1. The principal case must rest on the proposition that upon the admission of a territory into the Union corporations created under territorial law become de jure corporations of the state. See Kansas Pacific Ry. Co. v. Atchison, Topeka & Santa Fé R. Co., 112 U. S. 414, 415, 5 Sup. Ct. 208.

INSURANCE DEFENSES OF INSURER SUICIDE OF INSURED. A life insurance policy waived the statutory defense of death by suicide. Held, that the waiver was not contrary to public policy. Mutual Life Ins. Co. v. Durden, 72 S. E. 295 (Ga., Ct. App.). See NOTES, p. 283.

INSURANCE

INSURANCE AGENTS

EFFECT OF DELIVERY OF POLICY TO AGENT. An application for an insurance policy provided that the insurance should not take effect unless the policy was delivered to the insured. The policy was forwarded to a general agent of the company who failed to deliver it to the soliciting agent because of the indebtedness of the soliciting agent to the company. The applicant died before the policy was handed over to him or to the soliciting agent. Held, that there can be a recovery on the policy. New York Life Ins. Co. v. Pike, 117 Pac. 899 (Colo., Sup. Ct.).

It is generally held that delivery to the agent is delivery to the applicant, since the agent is not the agent to hold the policy for the company, but to hold it for and give it to the applicant. New York Life Ins. Co. v. Babcock, 104 Ga. 67, 30 S. E. 273; Hallock v. Commercial Ins. Co., 26 N. J. L. 268. It is not material that the agent receiving delivery is not the agent who procured the application. Kilborn v. Prudential Ins. Co., 99 Minn. 176, 108 N. W. 861. It has been held that the contract of insurance is not complete until communication to the applicant of the acceptance of the application. Kilcullen v. Metropolitan Life Ins. Co., 108 Mo. App. 61, 82 S. W. 966; Busher v. New York Life Ins. Co., 72 N. H. 551, 58 Atl. 41. But it is generally held that such communication is not necessary. Hallock v. Commercial Ins. Co., supra; Kilborn v. Prudential Ins. Co., supra. The correctness of the decisions in the latter cases would seem to depend on whether the application contemplated an acceptance by an act and whether that act had been done. The principal case may be supported on the ground that the application contemplated an acceptance by the act of the delivery of the policy to the insured or the company's agent for him.

INTERSTATE COMMERCE - CONTROL BY STATES - JURISDICTION OF STATE COURT OVER ACTION BY CARRIER TO RECOVER UNPAID BALANCE OF SCHEDULE RATE. A carrier by mistake charged less for an interstate shipment of freight than the rate scheduled in accordance with the Interstate Commerce Act. Held, that the carrier can maintain an action for the difference in a state court. Baltimore & Ohio Southwestern Ry. Co. v. New Albany Box & Basket Co., 96 N. E. 28 (Ind., App. Ct.).

Any contract at variance with the schedule rate is void, and the carrier may recover the sum due him under the Act. Louisiana Ry. & Navigation Co. v. Holly, 127 La. 615, 53 So. 882. Cf. Texas & Pacific Ry. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628. In the absence of federal regulation to the contrary, state courts may entertain suits arising from interstate commerce. Midland Valley R. Co. v. Hoffman Coal Co., 91 Ark. 180, 120 S. W. 380; Western Union Tel. Co. v. Call Publishing Co., 181 U. S. 92, 21 Sup. Ct. 561. Federal statutes may be enforced in state courts. Central of Georgia Ry. Co. v. Sims, 169 Ala. 295, 53 So. 826; Bradbury v. Chicago, R. I. & P. Ry. Co. 149 Ia. 51, 128 N. W. 1.