sovereign, and his sinister interest in the criminating effect of testimony ceases when he does not punish for the act on which the testimony bears. Also there are grave practical objections to the existence of a privilege interfering with the rendition of justice, whose scope is determined by heterogeneous foreign laws. See 4 WIGMORE, EVIDENCE, § 2258. Now as the criminal laws of the federal and state governments are entirely independent, this reasoning would restrict the federal privilege from extending to state, just as to foreign laws. Furthermore, the history of the Fifth Amendment shows clearly that its purpose is to protect the individual against the federal government only. See Barron v. Baltimore, 7 Peters (U. S.) 243. This purpose is fully effectuated when immunity from federal prosecution is granted. Hale v. Henkel, supra, 68. See 10 HARV. L. REV. 120, 121. Obviously, though, when federal courts are applying state law, crimination under state law should be the criterion of the privilege. United States v. Saline Bank, 1 Peters (U. S.) 100.

CORPORATIONS INSOLVENCY OF CORPORATION RIGHT OF TRUSTEE IN BANKRUPTCY TO RECOVER UNPAID BALANCE OF STOCK ISSUED AT A DISCOUNT. A Minnesota corporation issued stock at ten per cent of its par value as fully paid up and non-assessable. Upon bankruptcy, its trustee seeks to recover from original holders of this stock the unpaid balance. Held, that he may not recover. Courtney v. Georger, 228 Fed. 859 (C. C. A., 2d Circ.) For discussion of this case, see NOTES, p. 854.

CORPORATIONS STOCKHOLDER'S LIABILITY GIFT OF STOCK TO CORPORATION. Many of the shareholders in a state bank donated a third of their shares to the bank, to sell and build up a surplus. The bank failed while much of this stock was unsold. The creditors seek to enforce the statutory double liability on the unsold stock against the donors. Held, that the donors are liable. Barth v. Pock, 155 Pac. 282 (Mont.)

In many American jurisdictions the purchase by a corporation of its own stock is ultra vires. See 4 THOMPSON, CORPORATIONS, 2 ed., §§ 4075, 4076. Such is the uniform rule in England. Trevor v. Whitworth, 12 A. C. 409. In such jurisdictions, collateral attack, even if denied for some purposes, will be permitted, in order to avoid prejudice to the innocent creditors. See E. H. Warren, "Executed Ultra Vires Transactions," 23 HARV. L. REV. 495, 509. However, if the stock has been resold by the corporation such protection of the creditor is unnecessary, as the depleted assets are then restored and the purchaser substituted to liability on the stock. Lantry v. Wallace, 182 U. S. 536; Alling v. Wenzel, 133 Ill. 264, 24 N. E. 551. Even if the purchase is not ultra vires, the courts should not permit such a purchase to injure the rights of creditors, and clearly would not as to existing creditors. Clapp v. Peterson, 104 Ill. 26. Some courts would refuse relief to subsequent creditors. Marvin v. Anderson, III Wis. 387, 87 N. W. 226. For such a purchase is really a reduction of the capital stock, on the apparent amount of which existing and subsequent creditors are alike entitled to rely. See I MORAWETZ, PRIVATE CORPORATIONS, 2 ed., § 112. A gift of stock to a corporation, however, is different. If the stock is fully paid up, then no assets are destroyed, and there is no objection to acceptance by the corporation. Rivanna Navigation Co. v. Dawson, 3 Gratt. (Va.) 19; cf. Lake Superior Iron Co. v. Drexel, 90 N. Y. 87, 93. But when the stockholders are subject to a statutory double liability or the shares are only partly paid up, a gift or release destroys the creditors' security, and is a fraud on creditors as much as if assets were directly paid out. Bellerby v. Rowland, etc. Co., [1902] 2 Ch. 14. Especially is this so as the creditor, though the other shareholders are still liable on their own stock, cannot hold them on the statutory liability for the stock, held by the corporation, See Crawford v. Roney, 126 Ga. 763, 766, 55 S. E. 499, 501; cf. In re Republic Ins. Co., 3 Biss. (U. S. C. C.) 452. Accordingly the

Ι

attempt by a corporation to release unpaid stock assessments is subject to attack by creditors. Vick v. La Rochelle, 57 Miss. 602; Rider v. Morrison, 54 Md. 429; cf. 23 HARV. L. REV. 566. Hence the principal case seems correct in not releasing the shareholders, even though the transaction was intended for the benefit of the bank. Cf. Walters v. Porter, 3 Ga. App. 73, 59 S. E. 452; In re Reciprocity Bank, 22 N. Y. 9, 18.

DEEDS CONDITIONS SUBSEQUENT

IMPOSSIBILITY OF PERFORMANCE.

A widow conveyed land to her son and his wife on their promise and on condition that they maintain and care for her during her life, the deed to be null and void if this condition was not complied with. On the death of one grantee and the incurable insanity of the other, the grantor sues for cancellation of the deed. Held, that the deed will be canceled. Huffman v. Rickets, 111 N. E. 322 (Ind. App.).

It was early laid down that an estate subject to a condition subsequent becomes absolute if the contingency for divesting becomes impossible without fault of the grantee. See Co. LIT. 206 a; Cromwel's Case, 2 Coke's Rep. 69, 79 b. However, the hostility of the courts to conditions subsequent has led them to expand this principle even to cases where the condition is not one for divesting, but a contingency on which the grantee may keep the estate. In re Bird, 8 Reports 326; In re Greenwood, [1903] 1 Ch. 749. See 6 KEnt, Com. 130; KALES, CONDITIONAL AND FUture InterestS IN ILLINOIS, § 277. But in thus relieving an innocent grantee from a forfeiture which he was helpless to prevent, a court should not go beyond cases where the purpose of the condition has been substantially accomplished, as when a merely collateral desire of the grantor becomes impossible. Cf. Lynch v. Melton, 150 N. C. 595, 64 S. E. 497. With conditions of support there is no difficulty if the beneficiary dies, though in the lifetime of the testator, as the contingency of divesting cannot happen. Parker v. Parker, 123 Mass. 584; Morse v. Hayden, 82 Me. 227, 19 Atl. 443. But when the person to furnish support dies, the performance of the contingency on which the grantee may keep the estate becomes impossible, for the personal attention of the grantee is generally contemplated and therefore his successor cannot perform in his place. See Glocke v. Glocke, 113 Wis. 303, 312, 89 N. W. 118, 121; cf. Richards v. Merrill, 13 Pick. (Mass.) 405, 408. On the ground of this impossibility, the weight of authority would probably hold the condition excused. Merrill v. Emery, 10 Pick. (Mass.) 507; cf. Anderson v. Gaines, 156 Mo. 664, 57 S. W. 726; Collett v. Collett, 35 Beav. 312. And it is doubtful whether the maintenance would constitute a charge on the land. Richards v. Merrill, supra. See 3 POMEROY, EQUITY JURISPR. 1246 n. Other courts, looking at the hardship on the widow who would thus be deprived of both the support and the land, have rightfully refused to relieve against the forfeiture provided in the deed, and have restored the land to her. Cromwel's Case, supra. See Cross v. Carson, 8 Blackf. (Ind.) 138, 139. However, it is possible that where, as in the principal case, there is both a covenant and a condition, the deed will be construed as if containing a covenant only. See Hoyt v. Kimball, 49 N. H. 322, 326. Contra, Glocke v. Glocke, supra; Cree v. Sherfy, 138 Ind. 354, 37 N. E. 787. But even if so construed, it is disputed whether equity will grant rescission and restore the land. Bruer v. Bruer, 109 Minn. 260, 123 N. W. 813; Bishop v. Aldrich, 48 Wis. 619, 4 N. W. 775. Contra, Stebbins v. Petty, 209 Ill. 291, 70 N. E. 673; Anderson v. Gaines, supra.

ESTATES TAIL - UNUSUAL FORM OF ESTATE TAIL SPECIAL. - Land was devised to a man "and the heirs of his body (other than A., his eldest son)," with remainders over. Held, that the devisee took a valid estate tail special, from which A. was excluded. Elliot v. Elliot, [1916] 1 I. R. 30 (Ch. Div.).

The several kinds of estates tail enumerated in the Statute De Donis are not exhaustive, but only examples. See Co. LIT. 24 a; CRUISE'S DIGEST, v. 1, Tit.

2, Ch. 1, § 22; CHALLIS, REAL PROPERTY, 3 ed., 288. However, besides the estate tail general, only two classes of tails have become established in property law: an estate limited to the issue of the donee by a particular spouse, and one limited according to the sex of the issue. See CHALLIS, REAL PROPERTY, 3 ed., 290, 295. But other forms have been suggested. The court relied on a case of a gift to the heirs of the body of a man in posterum procreandis, where the eldest son was excluded. Anonymous, 3 Leon, 87. But there the youngest son took as purchaser. See 2 PRESTON, ESTATES, 450, 451. Coke mentions without comment a gift to a man and his heirs begotten by his son, as a tail special, which passes over a degree. See Co. LIT. 20 b; 2 PRESTON, ESTATES, 392, 421. And it is said there may be a tail to a man and the heirs of his body being Protestants. See 2 PRESTON, ESTATES, 362, 445. If those suggestions are sound, there is no stopping place. The donor of any estate confined to the issue of the donee may classify and discriminate between the issue as his fancy dictates; and the descent must follow the lines marked out, until the entail is barred. But there is a policy against the creation of novel estates. See Johnson v. Whiton, 159 Mass. 424, 426, 34 N. E. 542; Co. LIT. 27 b; 1 PRESTON, ESTATES, 472. And it seems more in accord with the present tendency of property law to allow only the established classes of estates tail.

ESTOPPEL IN PAIS - WHAT ACTS WILL ESTOP-FAILURE OF ASSIGNEE OF WRITTEN CONTRACT TO TAKE THE WRITING FROM ASSIGNOR. — The obligee of a written contract assigned his rights under the contract but retained the written instrument. The assignee notified the obligor of the assignment. Later an agent of the obligee presented the writing to the obligor and represented that there had been a reassignment. The obligor paid the agent. The assignee now sues on the contract. Held, that he is estopped to deny the validity of the payment. Phelps v. Linnan, 156 N. W. 294 (Ia.)

A person may be estopped not only to deny his own misrepresentation, but also in some cases to deny those he has enabled others to make. See EWART, ESTOPPEL, 19. Thus if a specialty, even though non-negotiable, is delivered to a third person who represents that he has authority to deal with it, the owner will be estopped to deny this authority against a person who has acted in reliance thereon. Combes v. Chandler, 33 Ohio St. 178; Moore v. Metropolitan National Bank, 55 N. Y. 41. But some courts do not raise an estoppel unless the instrument is such as by business custom passes freely. Scollans v. Rollins, 173 Mass. 275, 53 N. E. 863. And certainly the bailment of a chattel will never in itself create an estoppel. McMahon v. Sloan, 12 Pa. 229; Ciannone v. Fleetwood, 93 Ga. 491, 21 S. E. 76; Baker v. Taylor, 54 Minn. 71, 55 N. W. 823. The reason for these distinctions rests in the fundamental nature of the estoppel, the creation of which is dependent upon the deceptiveness of the situation and the fault of its creator, as opposed to the general policy of protecting property rights. Thus while the nature of chattels is such that possession is hardly more indicative of ownership than of bailment, the possession of a specialty, since the instrument is ordinarily of value only as proof of property rights, is a very strong indication of authority to pass title. A written contract presents a situation lying between those two extremes. For while possession is not a prerequisite to its enforcement, yet it is of no value except as evidence of rights therein. In the principal case, however, the assignee did not create the appearances by delivering the contract, but failed to prevent such appearances by neglecting to obtain the instrument. This however should not effect the creation of an estoppel, for given a sufficiently deceptive appearance, a duty should arise of affirmative, as well as negative action. See 18 HARV. L. REV. 140.

EVIDENCE-DOCUMENTS SECONDARY EVIDENCE: NOTICE TO ACCUSED TO PRODUCE PRIVILEGED DOCUMENTS. In a trial upon a charge of embezzle

ment the prosecuting attorney stated in open court that a notice to produce an incriminating document had been served on the defendant, and asked the defendant if he had the paper in his possession. The court directed the jury to disregard the question and the statements. Held, that the admission of the evidence was error but was cured by the direction of the trial court. People v. Gibson, 55 N. Y. L. J. 573 (N. Y. Ct. of Appeals).

This dictum follows that of McKnight v. United States, 115 Fed. 972, 976. The court noticed the severe condemnation of that case by Professor Wigmore, but refused to be influenced. See 3 WIGMORE, EVIDENCE, § 2273, n. 3. For a criticism of the doctrine that a notice to produce documents in a criminal trial is in violation of the defendant's privilege against incrimination, see 29 HARV. L. REV. 211.

EVIDENCE-SUPPLEMENTING MEMORY-TESTIMONY OF BOOKKEEPER OF LARGE ESTABLISHMENT WHO HAS NO PERSONAL KNOWLEDGE OF FACTS RECORDED. - To prove an account against the defendant, plaintiff introduced in evidence the testimony of his bookkeeper, employed in a large mercantile establishment. The bookkeeper testified from his books, compiled from memoranda furnished by clerks, in the regular course of business, who alone had firsthand knowledge of the facts recorded. The memoranda had been destroyed by fire and the identity of the clerks lost. Over objection, the bookkeeper was permitted to supplement his memory from the records in his books, although he had no personal knowledge of the facts there recorded. Held, that there was no error. Givens v. Pierson, 167 Ky. 574, 181 S. W. 324.

For a discussion of the principles involved, see NOTES, p. 863.

FOREIGN CORPORATIONS SERVICE OF PROCESS — JURISDICTION OVER CAUSE OF ACTION ARISING OUTSIDE THE STATE. - A foreign corporation doing business in the state appointed an agent to receive service of process, in accordance with state law. Service was made on this agent on a cause of action arising outside the state. Held, that a personal judgment may be founded on such service. Bagdon v. Phila. & Reading Coal Co., 217 N. Y. 432.

Last year the Supreme Court held that where there had been no express appointment of an agent to receive process, it would be a denial of due process to extend the "implied" consent to a cause of action arising beyond the state. Simon v. Southern Ry., 236 U. S. 115. See 28 HARV. L. REV. 804. Jurisdiction in the absence of express appointment has generally been justified on the ground that doing business in the state indicates a real consent to all valid conditions, as to service, etc., contained in state statutes. St. Clair v. Cox, 106 U. S. 350, 356. See BEALE, FOREIGN CORPORATIONS, § 266. It was urged upon the court in the principal case that in accordance with this doctrine, actual and implied consent must be coextensive, and that hence the Simon case compelled the court to hold the service invalid even where there was an agent expressly appointed. The court met the dilemma by declaring that "implied consent is not real, but is the creature of law, and subject to such limitations as the law imposes, whereas consent in the principal case was actual, and voluntary. A recent case in the federal district court has taken the same distinction. Smolik v. Phila. & Reading Coal Co., 222 Fed. 148. But see Fry v. Denver & R. G. R. Co., 226 Fed. 893. A person may consent, it seems, to any kind of service, for any purpose. Tharsis Sulphur Co. v. Société des Métaux, 58 L. J. Q. B. 435; Montgomery, Jones & Co. v. Liebenthal, [1898] 1 Q. B. 487 (C. A.). If, therefore, consent in the principal case was voluntary, the reasoning of the court is irresistible. The power of the state to impose such a condition to the right of a foreign corporation to do business in the state is, however, doubtful, under the recent doctrine of "unconstitutional conditions." Western Union Tel. Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56. See Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 83.

HUSBAND AND WIFE - ANTENUPTIAL AGREEMENT CONSTRUCTION FAILURE OF CONSIDERATION. - Under an antenuptial agreement made in New York, where the parties were domiciled, the intended wife, in case she kept her promise to marry, was to be left certain securities by the husband's will. Several years after the marriage she left him, obtained a divorce in Missouri on a ground not recognized in New York, and remarried. When her former husband died, he bequeathed the securities to a third party. The wife claims them under the antenuptial agreement. Held, that she is not entitled to them. New Jersey Title Guaranty & Trust Co. v. Parker, 96 Atl. 574 (N. J.)

Marriage or a promise to marry is a valuable consideration. Smith v. Allen, 5 Allen (Mass.) 454; Magniac v. Thompson, 7 Peters (U. S.) 348, 393. And a promise for valuable consideration to make a specific testamentary disposition will be enforced by imposing a trust upon persons claiming under the deceased promisor. Rivers v. Executors of Thomas Rivers, 3 Desauss. (S. C.) 190; Emery v. Darling, 50 Oh. St. 160, 33 N. E. 715. See Synge v. Synge, [1894] 1 Q. B. 466, 470, 471. But where the essential equivalent demanded in return for the promise is not received, there is a failure of consideration, and the promise becomes unenforceable. Cf. Rice v. Goddard, 14 Pick. (Mass.) 293; Jones v. Buffum, 50 Ill. 277. Now, it is arguable that the equivalent demanded in the principal case was the continuance of the marriage relation, at least until dissolved on some ground authorized by the law of New York. See York v. Ferner, 59 Ia. 487, 489; Barclay v. Waring, 58 Ga. 86, 93. But even so, as entering the marital relationship is so substantial a part of the contemplated consideration in these contracts, it is doubtful whether a subsequent separation, especially after several years, is a sufficiently essential failure to render the agreement unenforceable. Thus it is generally held that neither misconduct after the marriage nor subsequent divorce will prevent the guilty party from enforcing an antenuptial agreement or enable the injured party to set aside a marriage settlement. Moore v. Moore, 1 Atk. 272; Fitzgerald v. Chapman, 1 Ch. Div. 563; Evans v. Carrington, 2 De G. F. & J. 481; cf. Smith v. Allen, supra. Contra, York v. Ferner, supra. This is the more clearly correct if entering into the marriage relation is the only consideration contemplated. See Moayon v. Moayon, 114 Ky. 855, 871, 872, 72 S. W. 33, 37. Such would seem to be the reasonable construction of the agreement in the principal case. Again if both parties know that the marriage may be invalid, even invalidity does not cause a failure of consideration. Ogden v. McHugh, 167 Mass. 276, 45 N. E. 731.

ILLEGAL CONTRACTS - PUBLIC POLICY- AGREEMENT TO SUE IN CERTAIN COURTS ONLY. - A contract between a domestic and a foreign corporation contained a stipulation that no action should be maintainable against the latter except in certain courts of the foreign state. The domestic corporation now sues in the courts of its own state. Held, that the stipulation is invalid. Nashua River Paper Co. v. Hammermill Paper Co., 111 N. E. 678 (Mass.).

The invalidity of agreements seeking wholly to deprive any sovereign of jurisdiction is settled by an almost unbroken line of authority. Ins. Co. v. Morse, 20 Wall. (U. S.) 445. See I PAGE, CONTRACTS, § 347. Cf. United States, etc. Co. v. Trinidad, etc. Co., 222 Fed. 1006, 1007. Since the underlying policy is the insistence of the sovereign upon its right ultimately to determine disputes in its courts, a partial limitation upon that right, if reasonable, has not been held objectionable. So, a contract shortening the period of limitations is valid. Fullam v. New York Union Ins. Co., 7 Gray (Mass.) 61; Northwestern Ins. Co. v. Phoenix Oil, etc. Co., 31 Pa. 448. Contra, French v. Lafayette Ins. Co., 5 McLean (U. S.) 461. Similarly a contract limiting the right of appeal is sustained. Hostetter's Appeal, 92 Pa. 132. See Stedeker v. Bernard, 93 N. Y. 589, 591. But a limitation of action to certain counties of a state has been held un