his own expense.17 The case where the public health requires the complete removal of the dam is probably the closest that could be stated. By the test already suggested, it would apparently fall under the police power, but it has been declared, by way of dictum, to be eminent domain, requiring compensation.18 There is, however, an essential difficulty in saying that any property is taken to be used for the public.19 Rather a stream is restored to its natural state by removing an obstruction producing unhealthy conditions.

The destruction of property where necessary in the public interest is familiar to the police power,20 but rare under eminent domain.21 Assuming that it cannot be done, under authority only to abate nuisances, unless the conditions can be adjudged to constitute a nuisance according to common law,22 yet apparently the police power is adequate for appropriately authorizing the removal of a detriment to public health not within the common-law definition of a nuisance.23 Conceding that justice and good faith would oblige the legislature to compensate the owner of such a dam, especially if its original erection was authorized or consideration exacted in return,24 yet, if the constitution recognizes this obligation as a legal requirement only in cases of taking for public use, it should not be for the court to strain its terms in order to overthrow a statute justified by the police power.25

CORPORATION'S RIGHT TO AVOID TRANSACTIONS WITH DIRECTORS. The determination of a corporation's right to avoid transactions in which any of its directors are adversely interested, and which have not been ratified by the shareholders, raises problems somewhat similar to those presented in the analogous situation of transactions between an ordinary principal and his agent. It is established doctrine that in the latter case

17 State v. Beardsley, 108 Ia. 396, 79 N. W. 138; Parker v. People, 111 Ill. 581. Contra, Woolever v. Stewart, 36 Oh. St. 146.

18 See Miller v. Craig, 11 N. J. Eq. 175, 186; Talbot v. Hudson, 16 Gray (Mass.) 417, 427. In the latter case the object was to drain meadows in promotion of agriculture.

19 See Livingston v. Ellis County, 30 Tex. Civ. App. 19, 21, 68 S. W. 723, 724.

20 Gardner v. Michigan, 199 U. S. 325, 26 Sup. Ct. 106; Newark, etc. Ry. Co. v. Hunt, 50 N. J. L. 308, 12 Atl. 697. See Russell . Mayor, etc. of New York, 2 Den. (N. Y.) 461.

21 Merely the amount or value of the property which it is necessary to take should not turn the case into one of eminent domain.

22 People ex rel. Copcutt v. Board of Health, 140 N. Y. 1, 35 N. E. 320; Yates v. Milwaukee, 10 Wall. (U. S.) 497.

23 See Miller v. Craig, supra, 185; Train v. Boston Disinfecting Co., 144 Mass. 523, 530, 11 N. E. 929, 936; TIEDEMAN, LIMITATIONS OF POLICE POWER, § 122. Cf. Rideout v. Knox, 148 Mass. 368, 19 N. E. 390.

24 See Stone v. Mississippi, 101 U. S. 814.

25 So a city may cause the removal of a powder magazine despite having formerly sold the land for its location. Davenport & Morris v. Richmond City, 81 Va. 636. Cf. Dunham v. City of New Britain, 55 Conn. 378, 11 Atl. 354.

1 A peculiar problem is presented by contracts of corporations to vary the duties imposed upon their directors, not by contract, but by the relation of directorship. Such contracts may be obnoxious for some reason of policy not applicable to all contracts

the principal can avoid the transaction if any unfairness was practiced upon him by the agent; 2 but if the agent acted fairly, the transaction is not voidable, even in the extreme case where the agent represented both himself and his principal. Similarly, a corporation can avoid a transaction in which any of its directors were adversely interested, if they acted unfairly. But when the directors acted with entire fairness, it is not so easy to achieve a result identical with that in the analogous case of the ordinary principal. A more stringent rule may be required for corporate transactions in which directors are adversely interested, because the latter have far greater opportunity to practice unfairness upon their principal than have ordinary agents. This increased danger of unfair dealing is due to the greater control which a director has over his principal and the other agents of his principal, and to the fact that it is impossible for a director to give notice of his adverse interest to his principal, an indispensable requirement for fair dealing by an agent with an ordinary principal. Do these two difficulties necessitate a rule allowing a corporation to avoid any contract in which its directors are adversely interested, irrespective of the fairness of the latter? The lack of such a rule will to some extent permit, in spite of the closest scrutiny by the courts, the exercise of fraud upon corporations by their directors.8 But the existence of such a rule will deprive corporations of some measure of the freedom enjoyed by ordinary principals in doing business and choosing agents; for the possibility of subsequent avoidance by the corporation of transactions in which its directors are adversely interested will discourage both dealings by directors with their corporations and acceptance of directorships by those desirous of dealing with the corporation or of serving other corporations dealing with it. That these considerations, and especially the former, are of importance, is illustrated by those cases in which a corporation, refused aid by everyone but its directors, has been saved from insolvency only by dealings with them."

The difficulty of determining whether a corporation will be damaged more by the unfair dealing of its directors or by the curtailment of the corporation's transactions with its directors and of its choice of directors has resulted in a conflict of authority, largely confined to a conflict between the cases of different periods. Most of the earlier decisions adopted the doctrine of voidability of all transactions, irrespective of their fairness.10 A recent decision is one of the many later holdings to the contrary,

between corporations and their directors. This special class of contracts, so far as it is affected by such a rule of policy, is not dealt with in this note.

2 People on relation of Plugger v. Township Board of Overseers, 11 Mich. 222.

3 Rochester v. Levering, 104 Ind. 562, 4 N. E. 203.

4 Burke v. Bours, 98 Cal. 171, 32 Pac. 980.

5 Hoffman Steam Coal Co. v. Cumberland Coal & Iron Co., 16 Md. 456; Electric Light Co. v. Bates, 68 Vt. 579, 35 Atl. 480.

551.

6 An instance of the exercise of such control is Pickett v. School District, 25 Wis.

7 Burke v. Bours, 92 Cal. 108, 28 Pac. 57.

8 See Stewart v. Lehigh Valley R. Co., 38 N. J. L. 505, 522. But see Wyman ʊ. Bowman, 127 Fed. 257, 273.

Tatem v. Eglanol Mining Co., 42 Mont. 475, 113 Pac. 295.

10 Wilbur v. Lynde & Hough, 49 Cal. 290; Munson v. S., G. & C. R. Co., 103 N. Y. 58, 8 N. E. 355. It should be noted that Aberdeen R. Co. v. Blaikie, Bros., i Macq. 461, an early case usually cited in this connection, is a Scotch case.

which have largely displaced the older view. Wainwright v. P. H. & F. M. Roots Co., 97 N. E. 8 (Ind.). Thus, by the growing weight of authority transactions of corporations, in which transactions any," or even a majority, 12 of its directors are adversely interested, whether as contracting parties or as directors of the other contracting party,13 cannot be avoided by the corporation if no unfairness was practiced upon it by the directors adversely interested.

ASSENT OF BUYER TO PASSING OF TITLE ON DELIVERY TO CARRIER. Delivery of goods to the carrier under a contract to sell ordinarily passes title to the buyer,' but if the shipment is not strictly in accordance with the contract, it is said that the buyer must assent.2 In the absence of any contract, title could not pass until the time that the buyer accepted the offer, and assented to receive title; and it is often said that the waiver of minor provisions, as the acceptance of a new modified contract, has a similar effect. But it seems probable that such a waiver vests the title in the buyer from the time of the shipment.5 A waiver is not an acceptance. It is strictly the relinquishment under certain conditions of a legal right or defense. But the courts seem to feel that one party to a contract should not suffer from the non-performance of minor conditions inserted solely for his own benefit, and thus in effect give him the power to treat the contract as if it had never contained such a condition. It follows that his assent relates back to the time of shipment. The doctrine is analogous to ratification, and it would seem that it could not operate to defeat the rights of purchasers from the vendor during the interval. There seems no reason in justice to prevent its ousting a trustee in bankruptcy, or even attaching creditors.9

A recent case suggests a third possibility. Lovell v. Newman, not yet reported (C. C. A., Fifth Circ.). The buyer had been induced by fraudulent bills of lading to pay for cotton before it was shipped, and did not assent to the late shipment until after the bankruptcy of the seller. The court said that the assent of a creditor is presumed in the absence of subsequent dissent. It can only mean that the title passed by operation of law

11 Beach v. McKinnon, 148 Fed. 734; Vonnoh v. Sixty-Seventh St. Atelier Building,

55 N. Y. Misc. 222, 105 N. Y. Supp. 155.

12 Wyman v. Bowman, supra; Tatem v. Eglanol Mining Co., supra.

13 Leavenworth v. Chicago, etc. Ry. Co., 134 U. S. 688, 10 Sup. Ct. 708.

1 Fraganov. Long, 4 B. & C. 219.

2 See Porter Mfg. Co. v. Edwards, 29 Hun (N. Y.) 509; Woodruff v. Noyes, 15 Conn. 335.

3 The Frances, 8 Cranch (U. S.) 359; Felthouse v. Bindley, 11 C. B. N. s. 869. 4 See Hanauer v. Bartels, 2 Colo. 514, 521.

5 Richardson v. Dunn, 2 Q. B. 218; Orcutt v. Nelson, 1 Gray (Mass.) 536; Peters v. Elliott, 78 Ill. 321. See Finn v. Clark, 12 All. (Mass.) 522, 525.

See San Bernardino Investment Co. v. Merrill, 108 Cal. 490, 494, 41 Pac. 487, 488.

7 See Reid v. Field, 83 Va. 26, 33, 1 S. E. 395, 399. It is not ratification because only by a fiction can the shipper be said to act as agent, and because the concurrence of assent and not the relation of agency is necessary to pass title.

8 Cf. Bird v. Brown, 4 Exch. 786.

9 Peters v. Elliott, supra.

without the buyer's actual assent; and that by his dissent he has the power to divest that title ab initio. Rescission for fraud or breach of warranty has this effect only from the time of its occurrence.10 But there is an analogy in the case of gifts delivered to a third person, or to a trustee, where the assent of the donee or cestui que trust has always been "presumed." " An early English case first extended the doctrine to creditors, 12 and, in spite of subsequent disapproval by English judges,13 it was followed in New York.14 The same result was reached independently from the same analogy by the Supreme Court of the United States in 1850.15 In a similar line of cases the principle does not seem to have been considered,16 and the infrequency of its application makes its validity doubtful. There is a radical difference between a donee and a creditor, for, whereas the former gives up nothing and the possibility of his dissenting may safely be disregarded, a creditor must surrender his debt. At the moment of shipment there is about as little reason to presume assent by a creditor as by an ordinary contractor. The result would be practically the same if the relation back of assent is allowed to oust the rights of attaching creditors, and in both cases the reasons for the result are those above referred to. As an original question, presumption of assent might be more convenient; but it is now impossible to establish it in the case of ordinary contractors, and there seems no valid line of distinction.

THE RIGHT OF HUSBAND TO SUE WIFE FOR ALIMONY. Not only are virtually all the definitions of alimony that appear in the books limited in their terms to an allowance proceeding from the husband to the wife,1 but it has frequently been expressly decided that the law does not recognize a right in the husband to alimony.2 The property which equity in granting a divorce allows a husband on the ground that, although title to it is in the wife, it has been derived through the husband under circumstances which make it inequitable for the wife to retain it,3 is sometimes incorrectly referred to as alimony. On principle, however, it is 10 Thompson v. Conover, 32 N. J. L. 466. Cf. Hotchkiss v. Higgins, 52 Conn. 205.

Davis v. Ney, 125 Mass. 590; Doe v. Knight, 5 B. & C. 671. Cf. Goss v. Singleton, 2 Head (Tenn.) 67, 77.

12 Atkin v. Barwick, 1 Str. 165. Cf. Smith v. Field, 5 T. R. 402.

13 See Neate v. Ball, 2 East 117, 124; Alderson v. Temple, 4 Burr. 2235, 2239.

14 Brown v. Bowe, 35 Hun (N. Y.) 488; Sturtevant v. Orser, 24 N. Y. 538. Cf. Berly v. Taylor, 5 Hill (N. Y.) 577.

15 See Grove v. Brien, 8 How. (U. S.) 429, 440. Cf. Tompkins v. Wheeler, 16 Pet. (U. S.) 106; Brooks v. Marbury, 11 Wheat. (U. S.) 78.

16 Walter v. Ross, 2 Wash. C. C. (U. S.) 283; Bailey v. Hudson River R. Co., 49 N. Y. 70; Straus v. Wessel, 30 Oh. St. 211. These cases, although they treat a factor under advances as a vendee, refuse to do so unless he has ordered the consignment.

1 See Martin v. Martin, 65 Ia. 255, 256, 21 N. W. 595, 596; 1 Bishop, Marriage, DIVORCE AND SEPARATION, § 1386; GODOLPHIN, ABR. ECCL. LAWS, 508.

2 Somers v. Somers, 39 Kan. 132, 17 Pac. 841; Groth v. Groth, 69 Ill. App. 68. In some jurisdictions, by statute, a husband may obtain alimony. See R. I. GEN. Laws, 1909, c. 247, § 8; 1 PELL'S REVISAL OF N. C., 1908, c. 31, § 1565.

3 Meldrum v. Meldrum, 15 Colo. 478, 24 Pac. 1083. See note to Greene v. Greene, 4 L. R. A. 110.

wholly distinct from alimony technically so called as a support out of the wife's property.

Of recent years it has been thought that a tendency could be observed, resulting from the passage of the numerous statutes removing the commonlaw disabilities of married women, to place the wife and husband on an equality as regards this question. The first decision, however, in a court of last resort which manifests such a tendency, appears to be a recent North Dakota case, in which it was held that a husband, indigent and unable to earn a livelihood for himself, might recover alimony in a separate suit entirely apart from divorce proceedings.5 Hagert v. Hagert, 133 N. W. 1035 (N.D.). Although the court rested its decision in part on a statute which entitled the husband to support from his wife under such circumstances, it clearly indicates that it does not regard the statute as essential to its decision.

The argument of the court, amplified in the light of other cases in which the same question has been litigated,' would seem to be: (1) the wife's right to alimony is based on her right to support from her husband,3 which in turn was based at common law on the fact that her husband was vested with all her property immediately available for support, and entitled to her services; (2) inasmuch as the enabling statutes have removed the reason for the wife's right to support, the right itself should cease; (3) since that right, however, is too well established to be abolished, justice requires that a corresponding right be given to the husband under certain circumstances. This line of reasoning, it is submitted, cannot be sustained. In the first place, there would seem to be a deeper reason than that suggested for the wife's right to support from her husband, namely, the fact that the woman is in the nature of things dependent on the man. That this is recognized even to-day, despite the enabling statutes, is apparent from the presence on many statute-books of laws imposing criminal penalties on a husband for desertion, and the absence of any such statute relating to wives. Moreover, even should it be admitted that the reason for the wife's right to support had ceased, it would seem that the denial of the husband's right to support is quite as well settled as the recognition of the wife's right to it,10 and hence the argument proves only that the right should be denied the wife." Finally, even 4 See note to Greene v. Greene, 34 L. R. A. 110; 1 BISHOP, MArriage, Divorce AND SEPARATION, § 1387.

On the question whether in the absence of statute a wife can bring a suit for alimony apart from divorce proceedings, there is a conflict of authority. The better view seems to sustain such an action. Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657. See SCHOULER, HUSBAND AND WIFE, § 485. Contra, Clarke v. Burke, 65 Wis. 359, 27 N. W. 22. See I BISHOP, MARRIAGE, DIVORCE AND SEPARATION, § 1388.

If there is such a statute, the husband, it has been held, can enforce the right it gives him by a decree for alimony. Livingston v. Superior Court of Los Angeles County, 117 Cal. 633, 49 Pac. 836. In view of this, the decision, at least, in Hagert v. Hagert, 133 N. W. 1035 (N. D.), would seem to be correct.

7 See especially opinion in Groth v. Groth, 28 Chic. Leg. N. 348, reversed in 69 Ill. App. 68. For a comment on the decision in the lower court see 10 HARV. L. Rev. 177. 8 See Harris v. Harris, 31 Grat. (Va.) 13, 17.

9 See 2 PELL'S Revisal of N. C., 1908, c. 81, § 3355; 1 Cobbey, Neb. Ann. Stat., 1909, § 2381.

10 See Greene v. Greene, 49 Neb. 546, 552, 68 N. W. 947, 949; Somers v. Somers, 39 Kan. 132, 136, 17 Pac. 841, 846.

11 So it has been held that, in view of modern statutes permitting married women to