to the trustees,12 the trust was held to be valid.13 In re Earl of Stamford and Warrington, [1912] 1 Ch. 343. It seems an unsubstantial refinement to say that the existence of a legal term would alter the result when, if the objects for which it solely exists are destroyed, the term itself becomes a mere shell and ceases.

1

THE DISABILITY OF HUSBAND AND WIFE AS WITNESSES FOR AND AGAINST EACH OTHER. — 1. At common law a husband or wife cannot testify either for or against the other where one is a party to either a civil suit or a criminal prosecution. The principal reason is that such testimony would be against public policy as tending to disturb the peace of families and as contrary to a natural feeling of propriety.2 Other considerations have undoubtedly been influential in producing this doctrine, such as the unity of interest making them subject to the rule disqualifying the parties to any suit, and, in the case of the disability to testify in one another's favor, the general disqualification for interest. The disqualification to testify for one another is clearly an incompetency, for it would be quite ineffective if it could be waived. Some cases refer to the disability to testify against one another as being the privilege of the party spouse which cannot be waived without his consent. More generally, however, it has been spoken of as absolute disability. There have been strong implications that it cannot be waived by either spouse, and it has been held that it cannot be waived by the party spouse. This rule would seem most in accord with the public policy which is perhaps the true reason of the doctrine. In a recent English case the court, in holding that a statute which permitted the witness spouse to be called in certain criminal cases without the consent of the party spouse did not make the witness compellable, seems to take the view that this disability is at any rate a privilege of the witness spouse. Leach v. Director of Public Prosecutions, 132

8

12 The lower court held that the trustees, who had been given a term in another estate, had a legal estate by implication anterior to the estate tail and that the trusts were, therefore, too remote. In re Earl of Stamford and Warrington, [1911] 1 Ch. 255. Although the trustees were given power to hold manorial courts and accept surrenders of leases, the Court of Appeal said that surrenders could be accepted without a legal estate, and that the power to hold manorial courts would not be allowed. Cf. Henderson v. Henderson, 113 N. Y. 1, 20 N. E. 814. And the court held that there was merely a power of entry to receive the rents, and manage the estate. This goes very far in refusing to create an estate in the trustees by implication, and leads to the inference that the court was anxious to escape the doctrine of Browne v. Stoughton, supra. To the court's query what estate could be implied, it might be answered, a term for years preceding the other limitations.

13 Cf. Waring v. Coventry, 1 Myl. & K. 249.

1 See Barker v. Dixie, Cas. t. Hardw. 264; Kelley v. Proctor, 41 N. H. 139.

2 See Knowles v. People, 15 Mich. 408, 413.

3 See I GREENLEAF, EVIDENCE, 16 ed., § 334.

4 See I WIGMORE, EVIDENCE, § 601 (2).

5 See I WIGMORE, EVIDENCE, § 604 (1).

See Pedley v. Wellesley, 3 C. & P. 558.

7 Davis v. Dinwoody, 4 T. R. 678. See Sedgwick v. Watkins, 1 Ves. Jr. 49.

8 Barker v. Dixie, supra. See Clark v. Krause, 13 D. C. 559, 572.

9 THE CRIMINAL EVIDENCE ACT, 1898 (61 & 62 VICT., c. 36), § 4.

L. T. J. 416 (Eng., H. L., Feb. 26, 1912). 2. In suits between third parties the fact that one spouse was interested in the event of the cause disqualified the other from testifying.10 But the fact that the testimony of one spouse would tend to contradict or incriminate the other did not render the witness incompetent." 3. The rule that confidential communications are privileged, which extends both to suits to which one spouse is a party and suits between third parties, must also be distinguished.12 This is based on a clearly justified rule of public policy to insure, as in the case of attorney and client, the full benefit of a relation by encouraging complete confidence between the parties thereto.

These common-law rules as to testimony of husband and wife have everywhere been modified by statute. Often all privilege or incompetency except the third class is removed in civil cases.13 Sometimes there is established a privilege of the party spouse in both civil and criminal cases.14 Almost universally the privilege as to confidential communications is distinguished and confirmed.15

An exception to the rule of disability to testify against each other has always existed in cases of personal injury by one against the other,16 and by statute is often extended to all suits between them. Necessity compelled this, since such testimony might be the only means of preventing a wife's becoming a victim to the tyranny of a brutal husband,17 and public policy entered little into such a case.18 Personal injury was limited very strictly at common law to actual physical injury.19 A recent English case which holds that on an indictment against a man for living on the earnings of his wife's prostitution the wife was not a competent witness,20 is in accord with this narrow view. Director of Public Prosecutions v. Blady, 28 T. L. R. 193 (Eng., K. B. D., Jan. 18, 1912). Those decisions, however, in which under modern statutes a "personal injury" and a "crime against the other" have been construed more liberally would seem preferable.21

10 Tiley v. Cowling, 1 Ld. Raym. 744; Labaree v. Wood, 54 Vt. 452.

"King v. Inhabitants of All Saints, 6 M. & S. 194, intimating that the witness must consent; King v. Inhabitants of Bathwick, 2 B. & Ad. 639; Queen v. Halliday, 29 L. J. M. C. 148.

12 On theory, this privilege should belong to both parties to the communication. See People v. Wood, 126 N. Y. 249, 271, 27 N. E. 362, 368; Maynard v. Vinton, 59 Mich. 139, 152, 26 N. W. 401, 407. To the effect that it is incompetency, see Stein v. Bowman, 13 Pet. (U. S.) 209, 222. This privilege survives the relation when terminated by death. Doker v. Hasler, R. & M. 198. Or by divorce. Griffeth v. Griffeth, 162 Ill. 368, 44 N. E. 820.

13 ME., REV. STAT., 1903, c. 84, § 107.

14 MINN., REV. LAWS, 1905, § 4660.

15 MASS., REV. LAWS, 1902, c. 175, § 20; Mo., ANN. STAT., 1906, § 2637.

16 I BL. COMM. 443; I EAST P. C. 455; Lord Audley's Case, 3 How. St. Tr. 402 (rape); State v. Davis, 3 Brev. (S. C.) 3 (assault and battery); Wakefield's Case, 2 Lew. C. C. 279 (fraudulent abduction and marriage).

17 See Bentley v. Cooke, 3 Dougl, 422, 424.

18 See Soule's Case, 5 Green). (Me.) 407.

19 Desertion is not a personal injury to come within the exception. Reeve v. Wood, 10 Cox C. C. 58. Nor is larceny by wife of husband's goods. Queen v. Brittleton, 12 Q. B. D. 266. Nor conspiracy by husband to charge wife with adultery. State v. Burlingham, 15 Me. 104.

20 THE CRIMINAL EVIDENCE ACT, 1898, supra, § 4, does not provide for this exception.

21 Adultery is a crime against the other. State v. Bennett, 31 Ia. 24. Contra, State

RECENT CASES.

BAILMENTS BAILEE AND THIRD PERSONS MEASURE OF DAMAGES IN ACTIONS FOR INJURY TO BAILED CHATTELS. The plaintiff hired a horse from a livery stable. The defendant negligently caused the death of the horse. Held, that the plaintiff may recover the full value of the horse. Compton v. Allward, 48 Can. L. J. 109 (Maintoba, K. B.). See NOTES, p. 655.

BAILMENTS BAILOR AND BAILEE DUTY OF ONE LETTING CARRIAGES TO INSPECT. The plaintiff was injured by the breaking of the axle of a buggy hired from the defendant for a drive. The defect could have been known by the exercise of proper care by the defendant. Held, that the defendant is liable for the injury to the plaintiff. Denver Omnibus & Cab Co. v. Madigan, 120 Pac. 1044 (Colo., Ct. App.).

A coach owner is liable to passengers for accidents caused by his failure to inspect the coach. Bremner v. Williams, 1 C. & P. 414. See Ingalls v. Bills, 50 Mass. 1, 15. There is also some authority that one who lets vehicles incurs a similar liability to hirers. See Hadley v. Cross, 34 Vt. 586, 588; Hyman v. Nye, 6 Q. B. D. 685, 687. But the duty of a coach owner or other common carrier to a passenger differs from the duty of a letter to a hirer, since the performance of the carrier's duty is a matter of public concern. Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357. See Davis v. Chicago, etc. Ry. Co., 93 Wis. 470, 483, 67 N. W. 16, 20. It would seem, therefore, that the liability of the letter of carriages depends not on the law of carriers but on that of bailments for hire. It has been held in England that a bailor warrants that the property hired is reasonably fit for the bailee's purposes. Jones v. Page, 15 L. T. N. s. 619; Vogan v. Oulton, 79 L. T. N. s. 384. American courts have held, however, that the principle of caveat emptor applies, and that, accordingly, recovery, if allowed, must be based on negligence. Horne v. Meakin, 115 Mass. 326; Glenn v. Winters, 17 N. Y. Misc. 597, 40 N. Y. Supp. 659. Such negligence is held to consist in exposing hirers of property to danger by reason of defects therein of which the owner ought to know. Connors v. Great Northern Elevator Co., 90 N. Y. App. Div. 311, 85 N. Y. Supp. 644. Cf. Elliott v. Hall, 15 Q. B. D. 315.

BILLS AND NOTES CHECKS CHECK CONSTRUED AS ASSIGNMENT OF FUND. The plaintiff sued as executor to recover the amount of a check drawn by his testator on the defendant bank. The check was presented before the testator's death but was paid after notice of the event. Held, that the plaintiff cannot recover. Wasgatt v. First National Bank, 134 N. W. 224 (Minn.).

The principal case adopts the view that a check is an assignment pro tanto of the funds of the drawer. See 2 DANIEL, NEGOTIABLE INSTRUMENTS, 5 ed., § 1638. While this was formerly the rule in Illinois, Nebraska, Iowa, and Kentucky, the Negotiable Instruments Law has changed it. See BRANNAN, NEGOTIABLE Instruments LAW, § 189. But it is still law in South Carolina. Fogarties v. President, etc. of State Bank, 12 Rich. L. (S. C.) 518; Simmons v. Bank of Greenwood, 41 S. C. 177, 19 S. E. 502. Strictly the depositor has no money in the bank but simply a debt against the bank for the amount of the v. Armstrong, 4 Minn. 335. And so incest. State v. Chambers, 87 Ia. 1, 53 N. W. 1090. Contra, State v. Burt, 17 S. D. 7, 94 N. W. 409. And so perhaps where wife is wrongfully deprived of dower rights. See Hach v. Rollins, 158 Mo. 182, 190, 59 S. W. 232, 234. But bigamy has been held not a crime against the other. Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. 165; People v. Quanstrom, 93 Mich. 254, 53 N. W.

deposit. O'Connor v. Mechanics' Bank, 124 N. Y. 324, 26 N. E. 816. See Flor ence Mining Co. v. Brown, 124 U. S. 385, 391, 8 Sup. Ct. 531, 534. The universal power to stop payment on a check shows that it is not even an assignment of the debt. See 17 HARV. L. REV. 104, 113-114. The result of the principal case might be reached on the ground that death does not revoke the bank's power to pay. See 14 HARV. L. Rev. 588. Contra, Pullen v. Placer County Bank, 138 Cal. 169, 71 Pac. 83; Weiand's Admr. v. State National Bank, 112 Ky. 310, 65 S. W. 617. If the bank pays without notice, it will be protected. See Brennan v. Merchants' National Bank, 62 Mich. 343, 346, 28 N. W. 881, 882; 17 HARV. L. REV. 104, 117. If the common-law rule as to revocation of agency by death is thus abandoned, it would seem consistent to hold that, even if known, death has no effect on an outstanding order. See MORSE, BANKS AND BANKING, 4 ed., § 400. The Negotiable Instruments Law, though silent on this point, provides that a check is a bill of exchange. See BRANNAN, NEGOTIABLE INSTRUMENTS LAW, § 185. And the drawer's death does not revoke the power to accept a bill of exchange. Billing v. Devaux, 3 M. & G. 565. See Cutts v. Perkins, 12 Mass. 205, 210.

EFFECT AT

CONFLICT OF LAWS-RECOGNITION OF FOREIGN JUDGMENTS SITUS OF LAND OF FOREIGN DECREE FOR CONVEYANCE OF LAND AS ALIMONY. The plaintiff, a citizen of New York, married the defendant, a citizen of Switzerland, in France. The plaintiff conveyed in fee to the defendant a one half interest in real property, situated in New York. The plaintiff then secured a divorce in Switzerland, whose law required a divorced husband to reconvey all property which his former wife had transferred to him during the existence of the marriage. The plaintiff in New York asked for a decree for reconveyance. Held, that the plaintiff has no right to the relief prayed. De Graffenried v. De Graffenried, 132 N. Y. Supp. 1107 (App. Div.). See NOTES, p. 653.

CONFLICT OF LAWS SITUS OF CHOSES IN ACTION - JURISDICTION IN REM. A debtor, garnished in Illinois, pleaded a prior assignment by the principal defendant. The assignee, who, it would seem, was not in Illinois, was made a party and properly served according to Illinois law. The assignee did not appear, and the debtor-garnishee paid. The assignee later sued him in Iowa. Held, that the Illinois judgment is a bar. Steltzer v. Chicago, M. & St. P. Ry. Co. 134 N. W. 573 (Ia.). See NOTES, p. 651.

CONSTITUTIONAL LAW EX POST FACTO AND RETROACTIVE LAWS STATUTE ADMITTING EVIDENCE AGAINST ACCUSED. A statute provided that no evidence or pleading of a party obtained from him by judicial proceeding should be used against him in any criminal case. The statute was repealed after the commission of a forgery for which the defendant was indicted, but before trial. The forged writing had been incorporated by the defendant into his pleadings in a civil case. Held, that the writing is not admissible in evidence against him. Frisby v. United States, 44 Chic. Leg. N. 227 (D. C., Ct. App., Jan. 2, 1912).

A statute giving certain evidence the effect of a presumption cannot operate retrospectively in criminal cases. State v. Cincinnati Tin & Japan Co., 66 Oh. St. 182, 64 N. E. 68; State v. Bond, 4 Jones (N. C.) 9. A fortiori, if the presumption is conclusive. United States v. Hughes, Fed. Cas., No. 15,416; Kring v. Missouri, 107 U. S. 221, Sup. Ct. 443. These are really changes in substantive law. See THAYER, PRELIMINARY TREATISE ON EVIDENCE, chap. viii. Changes in procedure destroying substantial rights of the accused are ex post facto laws. State v. Baker, 50 La. Ann. 1247, 24 So. 240. See Calder v. Bull, 3 Dall. (U. S.) 386, 390; Hallock v. United States, 185 Fed. 417, 422. Thus, a statute allowing conviction upon evidence previously

insufficient is ex post facto, though creating no presumption. Hart v. State, 40 Ala. 32; Goode v. State, 50 Fla. 45, 39 So. 461. But one changing the competency of witnesses is not. Hopt v. Territory of Utah, 110 U. S. 574, 4 Sup. Ct. 202; Wester v. State, 142 Ala. 56, 38 So. 1010; Mrous v. State, 31 Tex. Cr. R. 597, 21 S. W. 764. The courts apparently give no weight to the difference between changes in admissibility of the evidence and changes in its legal effect. State v. Johnson, 12 Minn. 476. Nor to the fact that the statute admits, rather than excludes, the evidence. Cf. O'Bryan v. Allen, 108 Mo. 227, 18 S. W. 892. What is a permissible change of the accused's rights seems a matter of degree. In the principal case, the statute applied only to criminal cases. The retroactive effect of a statute admitting in all cases writings previously inadmissible has been held constitutional. Thompson v. Missouri, 171 U. S. 380, 18 Sup. Ct. 922. The breadth of such a statute may more conclusively negative any legislative intent of breaking faith to the accused, but the distinction seems fine, and the presumption in favor of the constitutionality of the statute should prevail.

CONSTITUTIONAL LAW POWERS OF THE JUDICIARY NO JURISDICTION TO ENFORCE CONSTITUTIONAL GUARANTEE OF REPUBLICAN FORM OF GOVERNMENT. An amendment to the Constitution of Oregon provided for the initiative and referendum. The defendant corporation was taxed under a statute enacted by a reference to the people. It sought to avoid the tax on the ground that the statute and amendment violated the provision in the Federal Constitution that guarantees to each state a republican form of government. The Supreme Court of Oregon sustained the tax. The defendant appealed to the Supreme Court of the United States. Held, that the case be dismissed for want of jurisdiction. Pacific States Tel. & Tel. Co. v. Oregon, U. S. Sup. Ct., Feb. 19, 1912. See NOTES, p. 644.

CORPORATIONS STOCKHOLDERS: RIGHTS INCIDENT TO MEMBERSHIP STATUTORY RIGHT TO INSPECTION OF STOCK BOOK. A statute provided that the stock book of every stock corporation should be open daily for the inspection of its stockholders, and provided for the recovery of a penalty and damages for refusal to allow inspection. On an application by a stockholder for a writ of mandamus to compel allowance of an inspection, the corporation stated facts showing that the relator's purpose in seeking an examination was "sinister and inimical to the defendant. Held, that the writ should be denied. People ex rel. Britton v. American Press Association, 133 N. Y. Supp. 216 (App. Div.).

The following decisions support the principal case. Wight v. Heublein, III Md. 649, 75 Atl. 507; State ex rel. O'Hara v. National Biscuit Co., 69 N. J. L. 198, 54 Atl. 241; Commonwealth v. Empire Passenger Ry. Co., 134 Pa. St. 237, 19 Atl. 629. But the weight of authority is contra. Mutter v. Eastern and Midlands Ry. Co., 38 Ch. D. 92; Cincinnati Volksblatt Co. v. Hoffmeister, 62 Oh. St. 189, 56 N. E. 1033; Venner v. Chicago City Ry. Co., 246 Ill. 170, 92 N. E. 643. The legislature could expressly provide that mandamus should always be granted. And it is frequently argued that the existing statutes intend to procure an absolute right to inspect the books in order to protect the stockholder from any possibility of baffling litigation. Johnson v. Langdon, 135 Cal. 624, 67 Pac. 1050; Kimball v. Dern, 116 Pac. 28 (Utah). But the interests of the corporation and the other stockholders are entitled to some consideration. And in the absence of express legislative command, it is submitted that mandamus should not be granted to one who has not clean hands. Such a plaintiff should be remitted to his suit for damages in which no issue of the stockholder's purposes could be raised. However, the current of judicial opinion in New York is against the principal case. People ex rel. Callanan v.